LIBRARY 


UNIVERSITY  OF  CALIFORNIA. 


Class 


THE   PEOPLE'S   LAW 


THE  MACMILLAN  COMPANY 

NEW  YORK   •    BOSTON   •    CHICAGO 
ATLANTA  •   SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON   '    BOMBAY   •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


THE  PEOPLE'S  LAW 

OR 

POPULAR  PARTICIPATION  IN 
LAW-MAKING 

FROM  ANCIENT  FOLK-MOOT  TO  MODERN 
REFERENDUM 

A   STUDY   IN   THE  EVOLUTION   OF  DEMOCRACY 
AND  DIRECT  LEGISLATION 


BY 
CHARLES   SUMNER   LOBINGIER,  PH.D.,  LL.M. 

JUDGE  OF  THE  COURT  OF  FIRST  INSTANCE,  PHILIPPINE  ISLANDS;  COMMISSIONER  TO  REVISE  AND  EDIT 
PHILIPPINE  CODES;    MEMBER  NATIONAL  CONFERENCE  OF  COMMISSIONERS  ON  UNIFORM 

LAWS;    MEMBER  OF  THE  BAR  OF  THE  UNITED  STATES  SUPREME  COURT 
SOMETIME  MEMBER  NEBRASKA  SUPREME  COURT  (COMMISSION)  ;  PROFESSOR  OF  LAW 

IN   THE   UNIVERSITY   OF   NEBRASKA 


WITH  AN  INTRODUCTION 

BY 

GEORGE   ELLIOTT   HOWARD 

PROFESSOR    OF    POLITICAL    SCIENCE    AND    SOCIOLOGY 
IN  THE   UNIVERSITY  OF  NEBRASKA 


OF  THE 

UNIVERSITY 

CF 


Wefo  gorfc 
THE    MACMILLAN   COMPANY 

1909 

All  rights  reserved 


COPYRIGHT,  1909, 
BY  THE  MACMILLAN  COMPANY. 


Set  up  and  electrotyped.     Published  December,  1909. 


J.  8.  Cashing  Co.  —Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


Lex  est  quod  populus  jubet  atque  constituit.  — GAIUS  (ca.  150). 

Leges  nulla  alia  causa  nos  tenent  quam  judicio  populi  receptae  sunt. 

—  ULPIAN  (ca.  215). 

Turn  demum  humanae  legis  habent  vim  suam,  sum  fuerint  non  modo  institutae 
approbatione  communitatis.  —  GRATIAN  (ca.  1150). 

"  Every  law  which  the  people  in  person  have  not  ratified  is  invalid ;  it  is  not 
a  law."  —  ROUSSEAU  (1762). 

"  The  basis  of  our  political  systems  is  the  right  of  the  people  to  make  and  to 
alter  their  constitutions  of  government." 

—  WASHINGTON  (Farewell  Address,  1796). 

"The  American  Revolution  broke  out,  and  the  doctrine  of  the  sovereignty 
of  the  people  came  out  of  the  townships  and  took  possession  of  the  state  .  .  . ; 
it  became  the  law  of  laws."  —  DE  TOCQUEVILLE  (1835). 


1O 


GEORGE   ELLIOTT   HOWARD 

FROM  WHOSE   LUMINOUS  INSTRUCTION 

THE  AUTHOR  FIRST  CAUGHT   THE   HISTORICAL 

CONCEPTION  OF   LAW 

THIS   WORK 
IS  APPRECIATIVELY  DEDICATED 


ERRATA 

Page  2,  footnote,  line  one  from  bottom.     For  "Property,"  read 

"  Propriety." 

Page  28,  footnote  No.    i.     For  "Publication  Instruction,"  read 

"  Public  Instruction." 

Page  32,  line  17.     For  "  Ordinannccs"  read  "Ordinnances" 

Page  89,  line  24.     For  "  Wetherford,"  read  "  Wetherfield." 

Page  141,  footnotes.    For  "  Ramsey,"  read  "  Ramsay  "  throughout. 

Page  162,  footnote  No.  4.     For  "  1821,"  read  "  1801." 

Page  202,  footnotes.     The  quotation  from  Oberholtzer  should  be 

in  the  third  footnote. 

Page  208,  footnote  No.  5.     For  "  1673,"  read  "  673-" 
Page  259,  footnote  No.  6.      Read  "  Illinois  Laws,  1847,  sec.  6, 
P.  35-" 

Page  314,  footnote.     Insert  "XIII"  after  the  words  "Harvard 
Law  Review." 

Page  365,  footnote  No.  8.     For  "  R.  I.  Platt,"  read  "R.  T.  Platt." 


PREFACE 

SOME  years  ago,  in  preparing  for  the  "  American  and  English 
Encyclopedia  of  Law "  the  article  on  "  Constitutional  Law,"  the 
author  was  led  to  investigate  the  interesting  question  of  the  validity 
of  the  then  recently  proclaimed  southern  constitutions  which  had 
not  been  ratified  by  the  people.  It  soon  became  apparent  that 
the  dearth  of  direct  judicial  authority  on  the  question  precluded, 
as  yet,  a  final  answer  from  that  source,  and  that  it  would  be 
necessary  to  approach  the  problem  from  the  historical  standpoint 
and  to  study  actual  rather  than  judicial  precedents.  In  other 
words,  and  in  the  absence  of  positive  enactment  or  decision,  the 
investigation  became  a  search  for  the  origin  of  the  practice  of 
popular  ratification,  an  inquiry  concerning  the  extent  to  which  it 
had  become  general,  and  an  effort  to  determine  from  that  source 
how  far,  if  at  all,  that  practice  had  ripened  into  law.  For,  as 
Sir  James  Mackintosh  well  said,  "constitutions  grow;  they  are 
not  made ; "  and,  he  might  have  added,  the  doctrines  of  constitu- 
tional law  are  more  often  the  products  of  civic  evolution  than  the 
formulas  of  a  definite  individual  or  body  or  of  a  given  occasion. 
If  we  would  learn  whether  a  principle  has  really  become  a  part 
of  our  constitutional  law,  we  must  know  something  of  its  history 
and  of  how  deeply  it  is  rooted  in  our  constitutional  experience.  In 
studying  the  subject  upon  these  lines  it  was  found  necessary  to  fol- 
low the  development,  not  only  of  constitutions,  but  of  law-making 
in  general.  Moreover,  as  the  work  advanced  other  questions  pre- 
sented themselves  for  discussion,  such  as  the  effect  of  the  practice 
of  popular  ratification,  its  desirability  from  the  standpoint  of  politi- 
cal science,  and  the  results  toward  which  it  appeared  to  be  tending. 
Indeed,  the  material,  at  first  apparently  meagre,  became  in  time  so 
voluminous  that  the  mere  process  of  selection  was  not  the  least  of 
the  difficulties  encountered.  The  results  of  the  search  thus  inaugu- 
rated —  the  materials  thus  collated,  analyzed,  and  discussed  —  con- 
stitute the  book. 

The  second  and  largest  part  is  not  a  history  of  constitutions ; 
only  an  attempt  to  trace  the  origin,  and  thereby  determine  the 

vii 


viii  PREFACE 

necessity,  of  one,  though  probably  the  most  important,  step  in  con- 
stitution-making. Nor  is  it  intended  as  a  history  of  constitutional 
conventions.  The  author  has  not  attempted  to  duplicate  the  work 
so  thoroughly  done  by  Judge  Jameson  a  generation  ago.  Some 
conventions  indeed,  which,  like  the  first  of  Massachusetts,  were 
landmarks  in  the  development  of  popular  ratification,  have  been 
treated  at  length.  And,  generally,  the  plan  has  been  followed, 
even  at  the  risk  of  incurring  criticism  for  too  much  quotation,  of 
allowing  the  sources  and  authorities  to  speak  for  themselves.  Ac- 
cordingly, wherever  practicable,  the  original  material  has  been 
placed  at  the  disposal  of  the  reader  in  order  that  he  may  judge 
for  himself  as  to  the  soundness  of  the  conclusions  drawn. 

Certain  collateral  phases  of  the  subject  are  left  for  treatment 
in  works  devoted  thereto.  The  fruitful  experience  of  Switzerland 
is  touched  upon  here  only  in  connection  with  the  origin  and 
development  of  popular  participation.  The  direct  primary  and 
the  employment  of  the  referendum  by  private  agencies  like  labor 
unions,  while  affording  interesting  side  lights,  are  not  instances 
of  law-making,  nor  do  they,  like  the  guild  ordinances  and  church 
covenants,  constitute  the  germs  —  but  are  rather  the  accompani- 
ments —  of  the  movement. 

The  work  was  practically  completed  in  1904,  but  for  several 
reasons,  chief  among  which  was  the  author's  departure  for  the 
Philippines,  it  became  necessary  to  defer  publication,  and  advan- 
tage has  been  taken  of  the  delay  to  add  some  new  matter.  The 
author  desires  here  to  render  tardy  acknowledgment  for  valuable 
suggestions  to  Professor  Willis  M.  West,  of  the  University  of 
Minnesota,  and  to  Professors  H.  W.  Caldwell  and  F.  M.  Fling, 
of  the  University  of  Nebraska;  for  aid  in  procuring  important 
materials,  to  Hon.  Amasa  M.  Eaton,  of  Providence,  Rhode  Island, 
Librarian  Isaac  S.  Bradley,  of  the  Library  of  the  Wisconsin  State 
Historical  Society,  and  Mr.  George  H.  Shibley,  of  Washington, 
D.C. ;  for  general  assistance  of  a  substantial  character,  to  Miss 
Katherine  Foos,  of  the  Omaha  Public  Schools,  and  Miss  Margaret 
O'Brien,  of  the  Omaha  Public  Library,  and  last,  but  not  least,  to 
one  at  home,  his  wife,  who  did  most  of  the  tedious  though  impor- 
tant work  of  verification. 

AUDIENCIA,  MANILA, 
April  30, 1909. 


INTRODUCTION 

IT  is  significant  that  nearly  the  whole  body  of  the  scientific  litera- 
ature  of  American  history  has  been  produced  during  the  forty  years 
since  the  close  of  the  Civil  War.  Before  that  time  a  few  writers  like 
Bancroft,  Hildreth,  and  Parkman  had  found  at  home  themes  worthy 
of  their  pens ;  while  many  others  —  essayists,  novelists,  and  historians 
alike  —  were  still  harking  back  to  the  twice-told  tales  of  the  Old 
World.  With  the  end  of  the  final  struggle  for  the  consolidation  of 
the  federal  Union  a  marvellous  change  took  place :  suddenly  a  vast 
unexplored  field  of  American  life  was  disclosed.  American  history, 
in  its  every  aspect,  became  exceedingly  attractive  to  American^  stu- 
dents ;  and  there  arose  a  keen  and  healthy  rivalry  in  its  exploitation. 

The  result  is  inspiring  and  full  of  promise.  We  have  no  just 
reason  to  be  ashamed  of  the  historical  output  of  the  past  four  decades. 
A  goodly  number  of  general  works  of  first-rate  quality  —  narrative, 
biographical,  and  institutional  —  have  appeared ;  while  every  month 
extends  the  formidable  list  of  special  monographs.  Indeed  it  is  be- 
coming more  and  more  clear  that  without  such  a  precedent  mono- 
graphic literature  a  full  and  true  national  history  cannot  be  produced. 
Such  a  history  must  proceed,  directly  or  indirectly,  from  the  coopera- 
tion of  a  host  of  scholars.  It  must  rest  on  the  basis  of  a  microscopic 
examination  of  every  part  of  the  source  materials.  Thus,  incidentally, 
we  perceive  the  important  function  of  the  academic  dissertation ;  for 
a  very  large  share  of  our  historiography  consists  of  collegiate  and 
university  theses  —  the  worthy  product  of  the  quarter  of  a  century 
of  graduate  study  in  the  United  States. 

Much  of  this  literature  deals  with  the  history  of  institutions. 
For  this  fact  there  are  two  adequate  causes.  On  the  one  hand, 
institutions  afford  the  best  opportunity  for  scientific  historical  train- 
ing. Institutions  are  essentially  biological  in  character,  since  they 
are  the  resultant  or  residuum  of  human  experience.  In  a  very  real 
sense  they  are  the  outward  or  concrete  expression  of  human  habits. 


X  INTRODUCTION 

If  not  true  organisms,  they  are  at  any  rate  organizations,  each  dis- 
charging its  proper  social  function;  and  hence  they  readily  lend 
themselves  to  exact  analysis  and  fruitful  comparison.  The  evolu- 
tionary element  —  the  element  which  gives  such  a  zest  to  historical 
and  sociological  research  —  is  the  vital  principle  of  all  institutional 
history.  On  the  other  hand,  American  institutions  in  particular  - 
whether  social  or  political,  religious  or  secular,  local  or  national  - 
relatively  afford  an  almost  inexhaustible  field  for  research.  The 
materials  for  their  study  are  abundant  and  easily  accessible;  while 
they  are  singularly  interesting  because  they  are  instinct  with  the 
vital  forces  of  one  of  the  most  progressive  societies  on  the  globe. 

The  history  of  American  institutions  reveals  a  remarkable  dualism 
which  at  once  quickens  the  interest  and  refines  the  discipline  afforded 
by  its  study.  Everywhere  and  in  all  stages  of  progress  the  discern- 
ing student  recognizes  the  contrast  of  continuity  and  innovation. 
This  dualism  is  especially  pronounced  during  the  era  of  institutional 
beginnings.  While  the  colonists  brought  with  them  a  rich  heritage 
of  laws,  customs,  and  constitutional  principles,  they  did  not  hesitate 
to  introduce  new  laws,  customs,  and  principles  of  singular  originality 
and  unique  social  value,  nor  to  give  new  meaning  to  old  forms, 
methods  and  organizations. 

In  the  New  England  colonies  the  innovation  was  even  more  strik- 
ing than  the  continuity.  It  would  indeed  be  strange  if  the  planting 
of  new  states  in  the  wilderness  had  not  brought  to  thoughtful  men  a 
rare  opportunity  for  freeing  themselves  from  the  trammels  of  anti- 
quated usages,  methods  and  traditions,  which  the  inertia  of  vested 
interests  might  yet  for  ages  sustain  in  the  native  land.  Accordingly, 
even  in  the  days  of  the  so-called  theocracy  in  Massachusetts,  the 
American  doctrine  of  complete  separation  of  church  and  state  had 
arisen  and  was  already  bearing  fruit.  Partly  through  zeal  in  pro- 
scribing the  ceremonies  and  usages  of  the  Roman  and  Anglican 
churches,  the  Puritan  often  showed  a  strong  reaction  in  favor  of  the 
temporal  power  in  matters  hitherto  regarded  as  exclusively  pertain- 
ing to  the  spiritual  jurisdiction.  The  forces  of  local  self-govern- 
ment were  quickened.  Thus  for  a  time  the  town-meeting  and  the 
religious  congregation  were  virtually  one  and  the  same ;  but  authority 
was  exercised  in  the  name  of  the  lay  township  and  not  in  that  of  the 
ecclesiastical  parish.  So  likewise  the  probate  of  wills,  the  adminis- 
tration of  estates,  the  exercise  of  chancery  jurisdiction,  and  the  con- 


INTRODUCTION  ri 

trol  of  primary  and  secondary  education  were  taken  out  of  the  hands 
of  the  church  and  vested  mainly  in  the  local  civic  community.  In 
the  secularization  of  education  Massachusetts  anticipated  the  mother 
country  by  more  than  two  centuries  and  a  half.  There  was  an  ex- 
ample of  even  bolder  change :  civil  marriage  and  civil  divorce  were 
sanctioned  throughout  New  England.  For  more  than  sixty  years 
after  the  first  settlement  the  priest  was  entirely  superseded  by  the 
magistrate  in  the  solemnization  of  wedlock;  although  before  the 
middle  of  the  eighteenth  century  the  American  system  of  optional 
lay  or  ecclesiastical  celebration  —  imitated  in  England  since  1836  — 
was  already  firmly  established. 

The  dualism  referred  to  —  the  union  of  the  old  and  the  new,  the 
blending  of  conservatism  and  radicalism  —  is  exhibited  in  a  signifi- 
cant way  in  the  history  of  the  federal  constitution.  Unquestionably 
the  American  people  have  made  three  great  contributions  to  the 
political  organism  and  to  political  science :  the  constitutional  con- 
vention, the  written  constitution,  and  constitutional  law.  Yet  each 
of  these  institutions  has  an  earlier  history  more  or  less  distinct. 

No  doubt  the  constitutional  convention  has  faint  prototypes  in 
the  English  revolutionary  and  " convention"  parliaments  of  1399, 
1660,  and  1689.  This  fact  is  important;  yet  it  should  not  for  a 
moment  be  suffered  to  obscure  the  far  more  significant  fact  that  as 
a  distinct  political  organ,  with  a  special  function  to  perform  —  an 
organ  to  be  compared  to  a  court,  an  executive,  or  a  legislature  —  the 
constitutional  convention  was  born  and  developed  in  America.  As 
a  representative  body,  created  according  to  definite  principles  to  dis- 
charge a  single  special  function,  that  of  enacting  organic  as  opposed 
to  mere  statute  law,  it  first  made  its  appearance,  fully  differentiated, 
in  the  Massachusetts  convention  of  1780  (the  type  of  subsequent 
state  constitutional  conventions)  and  in  the  national  convention  of 
1787.  Since  then  it  has  gained  its  own  law  and  its  own  litera- 
ture, and  it  has  taken  its  proper  place  in  the  Staatsrecht  of  the 
world. 

Similarly  in  English  history  there  are  forerunners  and  even  ex- 
amples of  the  written  constitution.  The  Constitutions  of  Clarendon, 
Magna  Charta,  the  Bill  of  Rights,  the  Act  of  Settlement,  are  all 
solemn  written  declarations  of  fundamental  rights  and  constitutional 
guaranties  which  were  intended  to  have  a  sanction  higher  than  that 
of  ordinary  statutes;  while  —  fourteen  years  after  the  "Funda- 


xii  INTRODUCTION 

mental  Laws"  of  Connecticut  and  the  ''Fundamental  Agreement" 
of  New  Haven  were  drafted  (1639)  —  Cromwell  in  his  "Instrument 
of  Government"  (1653)  provided  a  written  constitution  for  the 
actual  government  of  the  three  kingdoms  which  it  united  in  one 
nation.  Nevertheless,  the  written  constitution  as  an  actuality,  as  a 
recognized  and  permanent  form  of  organic  law,  is  essentially  the 
product  of  American  political  evolution.  It  is  easy  to  show  that  its 
separate  elements  are  nearly  all  drawn  from  earlier  colonial  or  Eng- 
lish experience ;  yet  in  the  combination  of  those  elements  there  is  an 
innovation  of  rare  significance.  Taken  as  a  whole,  the  federal  con- 
stitution is  a  highly  original  product  of  social  legislation. 

The  case  is  much  the  same  with  the  third  contribution  above 
mentioned  —  constitutional  law.  Constitutional  law,  as  systematic 
interpretation  of  an  instrument  of  government,  is  an  American 
product.  Long  before  Lord  Brougham  in  the  Wensleydale  Peer- 
age case  had  declared  that  "things  may  be  legal  and  yet  uncon- 
stitutional," James  Otis  in  arguing  against  the  writs  of  assist- 
ance had  affirmed  that  "an  act  against  the  constitution  is  void" 
and  "the  executive  courts  must  pass  such  acts  into  disuse." 
This  principle,  destined  to  become  so  vital  in  our  national  life,  is 
powerfully  supported  even  by  English  authorities.  It  is  expounded 
by  Sir  Edward  Coke  in  his  second  Institute,  as  also  in  his  judicial 
decisions;  while  centuries  before  that  intrepid  champion  of  the 
common  law  had  braved  the  wrath  of  James  I,  the  courts  had  more 
than  once  annulled  acts  of  parliament  as  being  inconsistent  with 
Magna  Charta  or  with  fundamental  constitutional  arrangements, 
such  as  the  spiritual  jurisdiction  of  the  Pope.  In  1690  John  Locke 
reached  the  same  principle  in  developing  his  theory  of  the  social 
compact.  The  authority  of  the  legislature  is  not  absolute,  but  re- 
stricted to  the  purpose  for  which  men  created  society.  The  legisla- 
ture, he  declares,  cannot  be  "absolutely  arbitrary  over  the  lives  and 
fortunes  of  the  people,"  nor  can  it  "assume  to  itself  a  power  to  rule 
by  extemporary,  arbitrary  decrees ;  but  is  bound  to  dispense  justice, 
and  to  decide  the  rights  of  the  subject,  by  promulgated,  standing 
laws,  and  known  authorized  judges."  Therefore  laws  which  "take 
away  and  destroy  the  property  of  the  people  "  have  no  binding  force. 
However,  during  the  eighteenth  century  the  doctrine  of  Coke  and 
Locke  yielded  almost  wholly  to  the  new  theory  of  the  omnipotence 
of  parliamentary  enactments.  Yet  Otis  proclaimed  a  once  accepted 


INTRODUCTION  xiii 

view  which  British  statesmen  under  George  III  might  well  have 
heeded. 

Assuredly  this  ancient  common  law  function  of  the  English  courts 
is  an  interesting  and  highly  important  fact  which  too  often  has  been 
overlooked.  Still,  there  is  a  more  significant  fact  which  should  not 
be  ignored :  the  first  body  of  constitutional  law  arose  in  America  as 
the  necessary  complement  of  the  written  instrument  of  government. 
Before  constitutional  principles  are  embodied  in  an  organic  statute 
it  is  difficult  or  impossible  to  develop  a  system  of  judicial  interpreta- 
tion. Indeed,  under  the  written  instrument,  the  task  has  been 
enormous.  The  success  with  which  it  has  been  accomplished  is 
largely  due  to  the  fact  that  the  solid  basis  was  laid  by  one  mind. 
During  thirty-five  years,  1801-1835,  John  Marshall  illuminated  the 
constitution  and  drew  out  the  powers  of  the  Supreme  Court.  In  this 
period  not  less  than  thirty-six  opinions  on  constitutional  questions 
were  submitted  by  him ;  and  these  display  the  unity  and  power  of  a 
systematic  treatise  on  public  law. 

The  constitutional  function  of  the  Supreme  Court  of  the  United 
States  in  theory  may  be  a  logical  development  of  the  principles  of 
the  English  common  law ;  but  it  is  precisely  the  opportunity  for  that 
development,  afforded  by  the  written  instrument,  which  constitutes 
the  originality  of  the  American  plan. 

The  conclusions  just  presented  are  abundantly  illustrated  in  Dr. 
Lobingier's  important  contribution  to  American  institutional  history. 
His  monograph  rests  upon  a  wealth  of  source  materials  never  before 
thoroughly  explored.  He  has  enabled  the  student  securely  to  follow 
the  evolution  of  the  written  constitution  in  the  colonial  and  revolu- 
tionary periods  and  in  the  individual  states  during  the  century  and  a 
quarter  of  our  national  existence.  This  evolution  yields  many  a 
lesson  of  vital  import  to  those  who  are  seriously  interested  in  the 
welfare  of  American  society.  In  particular,  the  long  story  of  the 
constitutional  referendum,  from  the  days  of  Calvin  and  Cartwright 
to  the  latest  experience  of  our  Southern  and  Western  states,  very 
clearly  reveals  the  same  dualism  of  continuity  and  innovation  which 
marks  other  branches  of  our  institutional  development.  The  author 
has  enriched  our  historical  literature  with  an  illuminative  treatise 
which  will  prove  of  great  service  to  every  student  of  political  science 
and  jurisprudence. 

GEORGE  ELLIOTT  HOWARD. 


TABLE  OF   CONTENTS 

PAGE 

PREFACE vii 

INTRODUCTION ix 

A 
GENESIS 

CHAPTER  I 
PRIMITIVE  POPULAR  ASSEMBLIES i 


CHAPTER  II 

SURVIVALS  OF  POPULAR  LAW-MAKING n 

A.  Persistence  of  the  Folkmoot  Idea        .         .         .         .         .         .11 

B.  Influence  of  the  Folkmoot  upon  Teutonic  Juridical  Conceptions  .  14 

C.  The  Craft  Guilds  and  their  Ordinances 19 

CHAPTER   III 

THE  CHURCH  COVENANT 23 

The  Anabaptists  and  their  "  Bund " 23 

CHAPTER   IV 

SWITZERLAND  AND  THE  REFORMERS 26 

A.  The  Environment  and  the  Background 27 

B.  Calvin 28 

C.  The  Refugees 33 

CHAPTER   V 

THE  CALVINISTS  IN  GREAT  BRITAIN 39 

A.  The  Doctrine  of  Congregational   Assent  and  the  Idea  of  the 

Covenant 39 

B.  Connection  between  Calvinism  and  the  Guilds    ....  41 

1.  Local  Contact  and  Environment 42 

2.  The  Pilgrim  Companies 45 


xvi  TABLE  OF   CONTENTS 

CHAPTER  VI 

PAGE 

POPULAR  RATIFICATION  IN  THE  PUBLIC  LAW  OF  THE  BRITISH  ISLES     .  49 

A.  The  Scottish  Covenants 49 

B.  Church  Covenants  in  England 53 

C.  Puritan  Associations  and  Compacts 55 

D.  "  The  Solemn  League  and  Covenant " 60 

E.  "  The  Agreement  of  the  People  " 64 

F.  Vane's  Proposal  for  a  Constitutional  Convention         ...  65 

CHAPTER   VII 

POPULAR  RATIFICATION  IN  COLONIAL  AMERICA 68 

New  England 68 

A.  Massachusetts 68 

1.  The  Colony  of  New  Plymouth 68 

2.  The  Colony  of  Massachusetts  Bay 73 

3.  The  New  England  Confederation 77 

B.  Rhode  Island 78 

1 .  Popular  Ratification  in  the  Towns     .....  78 

2.  Popular  Legislative  System  Perfected         ....  80 

3.  Rise  of  the  Delegate  System 83 

4.  Decline  of  Popular  Law-making         .....  85 

C.  Connecticut 88 

1.  The  Three  River  Towns 88 

2.  The  New  Haven  Colony 93 

3.  The  Guilford  Colony         .         .         .         .  .         .98 

D.  New  Hampshire 98 

E.  The  New  England  Town  Meeting 99 

CHAPTER   VIII 

POPULAR  RATIFICATION  IN  COLONIAL  AMERICA  (Continued}  .        .        .105 
The  Middle  and  Southern  Colonies         .         .         .         .         .         .         .105 

A.  The  Scotch-Irish 105 

B.  Pennsylvania      .         .         .         .         .         .         .         .         .         .107 

C.  The  Carolinas 1 1 1 

D.  Tennessee          .         .         .         .         .         .         .         .         .         .119 

1.  The  Watauga  Compact  (1772) 119 

2.  The  Nashborough  Articles  (1780)     .         .         .         .         .121 

3.  The  "  Frankland "  Constitution 126 

4.  The  "Association"  of  1788 128 

E.  Virginia 130 

F.  Kentucky 131 

G.  Mississippi 133 


TABLE   OF   CONTENTS  xvii 


B 

POPULAR    CONSTITUTION-MAKING  IN  THE 
UNITED  STATES 

I.     ORIGIN  AND  DEVELOPMENT 
CHAPTER   IX 

PAGE 

INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA 137 

The  First  Years 137 

A.  Introductory 137 

B.  New  Hampshire 138 

C.  South  Carolina  ..........  141 

D.  Virginia     ...........  142 

1.  "  The  First  Complete  Constitution ".         .         .  .142 

2.  Jefferson's  Plan  for  Popular  Ratification    ....     145 
£.    Pennsylvania 148 

1.  The  First  Constitution       .         .         .         .         .         .         .148 

2.  The  Proposed  Plebiscitum          .         .     *    .         .         .         .150 

F.  North  Carolina 152 

G.  Georgia 155 

CHAPTER  X 

INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA  {Continued)        .        .        .156 
New  York     .         .         .         .         .         .         .         .         .         .         .         .156 

CHAPTER   XI 

INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA  (Continued)        .        .        .  163 

Massachusetts 163 

A.  The  Rejected  Constitution  of  1778 164 

B.  The  Articles  of  Confederation 167 

C.  The  Constitution  of  1780 169 

CHAPTER   XII 

INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA  {Concluded)        .        .        .     180 
New  Hampshire    ...........     180 

A.  The  Articles  of  Confederation 180 

B.  The  Movement  for  a  Permanent  Constitution      .         .         .         .182 

C.  The  Work  of  the  First  Convention 184 

D.  The  Second  Convention 185 


xviii  TABLE   OF   CONTENTS 

CHAPTER  XIII 

PAGE 

POPULAR  RATIFICATION  EXTENDED  THROUGHOUT  NEW  ENGLAND  .        .188 

A.  New  Hampshire 188 

1.  The  Federal  Constitution 188 

2.  The  Constitution  of  1793 189 

B.  Rhode  Island 190 

C.  Connecticut 194 

D.  Maine 196 

E.  Other  States 201 

CHAPTER  XIV 

POPULAR  RATIFICATION  IN  THE  SOUTH 204 

A.  Southern  System  Indigenous 204 

B.  Kentucky 205 

C.  Tennessee ...........  207 

D.  Mississippi          ..........  210 

E.  Alabama    ...........  213 

F.  Virginia     .         .         .         .         .         .         .         .         .         .         .216 

1.  The  Preliminary  Movement 216 

2.  The  Convention 218 

G.  Georgia 223 

H.  North  Carolina 225 

/.     Florida 226 

J.     Maryland 227 

CHAPTER  XV 

POPULAR  RATIFICATION  IN  THE  MIDDLE  STATES 237 

A.  Pennsylvania 237 

B.  New  York 239 

1.  The  Preliminary  Movement 240 

2.  The  Convention  and  its  Work 243 

C.  New  Jersey 247 

D.  Delaware 248 

CHAPTER  XVI 

POPULAR  RATIFICATION  IN  THE  OLD  NORTHWEST  TERRITORY       .        .  250 

A.  Early  Popular  Law-making 250 

B.  Ohio 252 

C.  Indiana 255 

D.  Illinois 256 

E.  Michigan 261 

F.  Wisconsin 263 


TABLE  OF  CONTENTS  xix 
CHAPTER  XVII 

PAGE 

POPULAR  RATIFICATION  IN  THE  LOUISIANA  PURCHASE    .        .        .        .268 

A.  Louisiana 268 

B.  Missouri 270 

C.  Arkansas 272 

D.  Iowa 273 

E.  Kansas 277 

F.  Nebraska 280 

G.  Other  States 282 

CHAPTER  XVIII 

POPULAR  RATIFICATION  IN  THE  STATES  OF  THE  MEXICAN  CESSION       .  285 

A.  Texas 285 

B.  California 286 

C.  Utah 289 

D.  Oregon 290 

E.  Other  States 291 

CHAPTER  XIX 

POPULAR  RATIFICATION  IN  THE  FEDERAL  GOVERNMENT         .        .        .  292 

A.  The  Constitutional  Convention 292 

B.  The  Enabling  Acts     . 294 

C.  Miscellaneous  Measures 297 

II.     RETROGRESSION 

CHAPTER  XX 

MISSISSIPPI 301 

A.  The  Movement  Initiated 301 

B.  The  Issue  Joined 304 

C.  "  Enactment "  of  the  Constitution        ......  304 

D.  The  Procedure  tested  in  the  Courts 305 

CHAPTER  XXI 

SOUTH  CAROLINA 307 

A.  Preliminary  Steps       .........  307 

B.  Obstruction  attempted  in  the  Courts 307 

C.  The  Convention          .........  309 

CHAPTER  XXII 

DELAWARE 311 


xx  TABLE   OF   CONTENTS 


CHAPTER  XXIII 

PAGE 

LOUISIANA 313 

A.  The  Movement  for  a  New  Constitution 313 

1.  Origin  and  Purpose 313 

2.  In  the  Legislature      .         .         .         .         .         .         .  315 

3.  The  Measure 317 

B.  The  Convention          .         . 318 

C.  Validity  of  the  Constitution  Assailed 318 

CHAPTER  XXIV 

VIRGINIA 320 

A.  Preliminary  Movement 320 

B.  The  Convention 321 

C.  Attempts  to  test  the  Validity  of  the  Constitution         .         .         .  323 


III.     PRESENT  STATUS 

CHAPTER   XXV 

SOME  LAW  AS  TO  POPULAR  RATIFICATION 326 

A.  The  Vote  Necessary  to  Ratify 326 

B.  The  Legal  Necessity  of  Submission 330 

CHAPTER  XXVI 
RECAPITULATION  AND  RESULTS 338 

C 
POPULAR  LEGISLATION  IN  THE    UNITED  STATES 

CHAPTER  XXVII 
THE  STATUTORY  REFERENDUM  AS  TO  PARTICULAR  MEASURES       .        .    349 

CHAPTER   XXVIII 

THE  INITIATIVE  AND  REFERENDUM  AS  TO  ANY  MEASURE      .        .        .     358 

A.  Beginnings  of  the  Movement 359 

B.  The  System  Extended 361 


TABLE   OF  CONTENTS  xxi 

D 

POPULAR  PARTICIPATION  IN  LAW-MAKING 
OUTSIDE    OF  THE   UNITED  STATES 

CHAPTER  XXIX 

PAGE 

FRANCE 367 

A.  The  Constitutions 367 

B.  The  Napoleonic  Plebiscites .     371 

CHAPTER  XXX 
ITALY 378 

CHAPTER   XXXI 
OTHER  EUROPEAN  COUNTRIES  .  383 

CHAPTER  XXXII 
LATIN  AMERICA 386 

CHAPTER  XXXIII 

AUSTRALIA        ...  .  389 

A.  The  Federation  Movement 389 

B.  Popular  Interest  Awakened 391 

APPENDIX 

BIBLIOGRAPHY 395 

TABLE  OF  CASES  CITED  ...  411 

INDEX 413 


THE    PEOPLE'S    LAW 


CHAPTER  I 
PRIMITIVE  POPULAR  ASSEMBLIES 

ONE  of  the  conspicuous  features  of  the  public  life  of  early  Aryan 
peoples  was  the  popular  assembly.  Even  if  we  accept  the  conclusions 
of  recent  German  scholarship  *  that  the  earliest  folk  moot  was  an 
assembly  of  warriors  and  that  in  time  of  peace  it  became  a  mere 
gathering  of  individuals  who  were  not  even  bound  by  its  action,  the 

1  "Die  germanische  'civitas'  entbehrte  zu  Caesars  Zeiten  —  fur  gewohnlich  oder 
im  Frieden  —  noch  jeder  '  vollziehenden  Gewalt,'  noch  aller  Organe,  durch  welche  die 
Gesamtheit,  resp.  irgend  eine  Gesamtheit,  als  solche  einen  Willen  zu  bethatigen  oder  ein 
Recht  geltend  zu  machen  im  Stande  gewesen  ware. 

"  Auch  die  '  Concilien'  waren  nichts  weiter  als  Volksversammlungen  in  welchen  nur 
jeder  Einzelne  als  solcher  seinen  Willen  zum  Ausdruck  zu  bringen  oder  Verbindlich- 
keiten  einzugehen  vermochte,  aber  noch  keine  Beschliisse  gefasst  werden  konnten,  die 
fur  alle,  d.  h.  auch  fur  solche,  welche  denselben  nicht  zugestimmt  hatten,  oder  fur  die 
Abwesenden,  bindend  gewesen  waren.  ...  Zu  Caesars  Zeiten  bestand  —  im  Frieden 
oder  fur  gewohnlich  —  noch  iiberhaupt  kein  Gemeinwesen,  keinerlei  Gesammtheit  im 
Sinne  des  Rechts.  Das  ist  der  voile  Sinn  der  Worte:  'in  pace  nullus  est  communis 
magistratus.'  Und  wenn  Caesar  nichtsdestoweniger  von  einer  germanischen  'civi- 
tas' spricht,  so  hat  er  dabei  eben  nur  den  Kriegzustand  im  Auge. 

"  Fur  gewohnlich  oder  in  Friedenszeiten  gab  es  zu  Caesars  Zeiten  bei  den  germanen 
nur  Stamme,  Geschlechter,  Familien,  Individuen,  aber  noch  keine  'Gemeinde,'  so 
wenig  wie  einen  '  Staat ' ;  denn  eine  Gemeinde  ohne  Willensorgan  ist  ein  Unding,  in 
der  That  nichts  anderes  als  das  Lichtenberg'sche  'Messer  ohne  Klinge  an  welchen  der 
Stiel  fehlt.'"  —  Hildebrand  "Recht  und  Sitte"  (Jena,  1896),  69,  71. 

Cf.  Lamprecht,  "Deutsche  Geschichte"  (Berlin,  1891),  I,  145  et  seg.,  who  con- 
cedes to  the  early  Teutonic  assembly  certain  judicial  functions  which,  however,  he  says 
were  soon  lost. 


2  THE   PEOPLE'S   LAW 

fact  remains  that  we  have  in  this  martial  assembly  the  framework  of 
a  popular  legislature.1  If  its  activities  at  first  were  confined  to  mat- 
ters of  war,  it  must  not  be  forgotten  that  war  was  then  the  normal 
state,  and  that  as  periods  of  peace  were  lengthened  and  national 
solidarity  promoted,  the  transition  would  be  easy  to  a  body  which 
should  consider  other  than  military  questions.2  It  is  not,  however, 
within  the  scope  of  this  work  to  treat  exhaustively  of  the  functions 
of  this  archaic  institution,  though  it  seems  necessary  to  glance  at  it 
en  passant  for  such  light  as  it  may  throw  upon  the  general  theme.  It 
will  suffice  here  to  note  that  our  first  glimpse  of  each  of  the  great 

1  The  term  "legislative"  as  applied  to  the  functions  of  the  early  folkmoot  has 
been  criticised.    But  it  may  well  be  asked  if  even  the  assembly  of  warriors  did  not  really 
exercise  the  power  of  a  modern  legislature  when  it  determined  the  question  of  peace  or 
war? 

"In  the  infancy  of  society,"  says  Sir  Henry  Maine,  "many  conceptions  are  found 
blended  together  which  are  now  distinct,  and  many  associations  which  are  now  in- 
separable from  particular  processes  or  institutions  are  not  found  coupled  with  them. 
There  is  abundant  proof  that  legislative  and  judicial  power  are  not  distinguished  in 
primitive  thought."  —  "Early  History  of  Institutions,"  26. 

So  Freeman  observes :  — 

"  The  primary  Assembly,  of  whatever  kind,  is  in  its  own  nature  sovereign.  It  is  the 
gathering  together  of  the  whole  nation,  or  of  the  whole  ruling  part  of  the  nation.  The 
whole  power  of  the  nation  is  therefore  vested  in  it.  It  is  only  gradually  and  by  slow  steps 
that  there  arises  that  distinction  between  legislative,  executive,  and  judicial  powers  on 
which  such  stress  is  laid  in  the  refined  political  theories  of  modern  times."  —  "Com- 
parative Politics,"  241. 

2  The  conception  of  the  primitive  assembly  as  a  law-making  body,  even  if  not  strictly 
historical,  has  nevertheless  done  much  to  revive  and  preserve  the  notion  of  the  people 
as  the  source  of  legislative  power.     Calvin  in  his  "Institution"  (post,  29)  refers  to  the 
Greek  and  Roman  assemblies  as  precedents  for  his  democratic  theory  of  church  gov- 
ernment, and  William  Penn,  in  a  work  put  forth  in  1673,  entitled  "England's  Present 
Interest  Considered,"  discourses  as  follows:  — 

"  By  Fundamental  Laws,  I  do  not  only  understand  such  as  immediately  spring 
from  Synteresis  (that  eternal  principle  of  Truth  and  Sapience,  more  or  less  disseminated 
through  mankind,)  which  are  as  the  corner  stones  of  human  structure  .  .  .  but  those 
rights  and  privileges  which  I  call  English,  and  which  are  the  proper  Birth-right  of  Eng- 
lishmen, and  may  be  reduced  to  these  three. 

"7.  An  Ownership,  and  Undisturbed  Possession:  That  what  they  have,  is  Rightly 
theirs,  and  no  Body's  else. 

"  II.  A  Voting  of  every  Law  that  is  made,  whereby  that  Ownership  or  Propriety 
may  be  maintained. 

'"III.  An  influence  upon,  and  a  Real  Share  in,  that  Judicatory  Power  that  must 
apply  every  such  Law:  which  is  the  Ancient,  Necessary  and  Laudable  Use  of  Juries! 
If  not  found  among  the  Britons,  to  be  sure  practised  by  the  Saxons,  and  continued  through 
the  Normans  to  this  very  Day. 

****  **•*•*•*•**• 

"  II.  A  Voting  of  every  Law  that  is  made,  whereby  that  Ownership  or  Property  may 
be  maintained. 


PRIMITIVE   POPULAR  ASSEMBLIES  3 

Mediterranean  nations  reveals  the  presence  of  some  body  like  this 
primitive  assembly. 

Thus  in  the  Homeric  poems  we  find  existing  side  by  side  with  the 
paaiKevs  and  the  council  of  "/epov-res  the  assembly  of  warriors  or 
common  men,  to  which  was  communicated  the  more  important  con- 


"  This  second  fundamental  of  our  English  government,  was  no  incroachment  upon 
the  kings  of  more  modern  ages,  but  extant  long  before  the  Great  Charter  made  in  the 
reign  of  Hen.  Ill  even  as  early  as  the  Britons  themselves ;  and  that  it  continued  to  the 
time  of  Hen.  3.  is  evident  from  several  instances. 

"  Caesar,  in  his  Commentaries,  tells  us, '  That  it  was  the  custom  of  the  British  cities 
to  elect  their  General  or  Commander  in  chief,  in  case  of  War.'  Dion  assures  us,  in  the 
life  of  Severus  the  Emperor,  'That  in  Britain  the  People  held  a  share  in  Power  and 
Government ' ;  which  is  the  modestest  construction  his  words  will  bear.  And  Tacitus, 
in  the  Life  of  Agrippa,  says,  'They  had  a  Common  Council;  and  that  one  great 
reason  of  their  overthrow  by  the  Romans,  was,  their  not  consulting  with,  and  rely- 
ing upon,  their  Common  Council.'  Again,  both  Beda  and  Mat.  Westminster  tell  us 
'That  the  Britons  summoned  a  Synod,  chose  their  Moderator,  and  expelled  the 
Pelagian  Creed.'  All  which  supposes  popular  assemblies,  with  power  to  order  national 
affairs. 

"And  indeed,  the  learned  author  of  the  'British  Councils'  gives  some  hints  to  this 
purpose,  'That  they  had  a  Common  Council,  and  called  it  Kyfr-y-then.' 

"  The  Saxons  were  not  inferior  to  the  Britons  in  this  point ;  and  story  f  urnisheth  us 
with  more  and  plainer  proofs.  They  brought  this  Liberty  along  with  them,  and  it  was 
not  likely  they  should  lose  it,  by  transporting  themselves  into  a  country  where  they  also 
found  it.  Tacitus  reports  it  to  have  been  generally  the  German  Liberty ;  like  unto  the 
Concio  of  the  Athenians  and  Lacedaemonians. 

"  They  called  their  freemen  Frttingi;  and  these  had  votes  in  the  making  and  exe- 
cuting the  general  laws  of  the  kingdom. 

"  In  Ethelbert's  time,  after  the  monk  Austin's  insinuations  had  made  his  followers 
a  part  of  the  government,  the  Commune  Concilium  was  tarn  Cleri  quam  Populi,  '  as  well 
Clergy  as  People.'  In  Ina's  time,  suasu  &  institute  episcoporum,  omnium  senatorum 
&  natu  ma  jorum  sapientum  populi,  'Bishops,  Lords,  and  Wise  Men  of  the  People.1 
Alfred  after  him  reformed  the  former  laws,  consulto  sapientum,  '  by  the  advice  of  the 
sages  of  the  kingdom.'  Likewise  matters  of  public  and  general  charge,  in  case  of  war, 
&c.  we  have  granted  in  the  assembly,  Rege,  Baronibus  et  Populo ;  'by  the  King,  Bar- 
ons and  People.'  And  though  the  Saxon  word  properly  imports  'the  Meeting  of  Wise 
Men,'  yet  All  that  would  come  might  be  present,  and  interpose  their  like  or  dislike  of  the 
present  proposition:  As  that  of  Ina,  in  mag na  fervor -urn  Dei  frequentia.  Again,  Com- 
mune consilium  senior um  popular -urn  totius  regni;  'the  Common  Council  of  the  Elders 
or  Nobles,  and  People  of  the  whole  Kingdom.'  The  Council  of  Winton,  Ann.  855.  is 
said  to  be  in  the  presence  of  the  Great  Men,  aliorumq;  fidelium  infinita  multitudine; 
'  and  an  infinite  multitude  of  other  faithful  people ' ;  which  was  nigh  Four  hundred  years 
before  the  Great  Charter -was  made. 

"  My  last  instance  of  the  Saxon  ages  shall  be  out  of  the  Glossary  of  the  learned  Eng- 
lish Knight,  H.  Spelman:  'The  Saxon  Wittangemote,  or  parliament,'  saith  he,  'is  a 
Convention  of  the  Princes,  as  well  Bishops  as  Magistrates,  and  the  Free  People  of  the 
kingdom  * ;  And  that  the  said  Wittangemote  consulted  of  the  Common  Safety  in  peace 
and  war,  and  for  the  promotion  of  the  common  good. 


4  THE  PEOPLE'S   LAW 

elusions  reached  by  the  former  and  which  at  least  had  the  right  of  ex- 
pressing its  approval  or  disapproval.1  In  Rome  the  patrician  comitia 
curiata  has  already,  in  the  earliest  recorded  epoch,  supplanted  any 
more  primitive  assembly,  and  meets  for  the  purpose  of  giving  advice 
on  the  affairs  of  state,  particularly  declarations  of  war,  and  to  receive 
the  new  laws  promulgated  by  the  king.2  Through  Tacitus 3  we  see 
among  the  earliest  German  tribes  of  which  we  have  authentic  account 
the  assembly  of  "the  whole  body  of  the  state,"  where  "the  will  of  the 
people  ultimately  decides"  measures  which  the  chiefs  have  the  power 
of  discussing  and  recommending. 

Notwithstanding  its  prevalence  and  prominence  among  early  peo- 
ples, the  folkmoot,  very  early  in  its  history,  begins  to  lose  its  functions, 
and  particularly  those  which  we  should  now  consider  legislative.  The 
reasons  most  frequently  advanced  for  this  decline  are  convenience  and 

"  William  of  Normandy  chose  rather  to  rely  upon  the  People's  Consent,  than  his  own 
Power  to  obtain  the  Kingdom.  He  swore  to  them  to  maintain  their  Old  Laws  and  Privi- 
leges ;  they  to  him  Obedience,  for  his  so  governing  of  them:  For,  as  a  certain  author 
hath  it,  'He  bound  himself  to  be  just,  that  he  might  be  great;  and  the  people  to  submit 
to  justice,  that  they  might  be  free.'  In  his  Laws,  C.  55.  'We  by  the  Common  Council 
of  the  whole  Kingdom,  have  granted  the  People's  Lands  to  them  in  Inheritance,  accord- 
ing to  their  Ancient  Laws.' 

"  Matters  of  general  expence  upon  the  whole  body  of  the  people,  were  settled  by 
this  Great  Council,  especially  in  the  charge  of  arms,  imposed  upon  the  subject.  The 
law  saith  it  to  have  been  done  by  the  commune  concilium  of  the  Kingdom. 

"  So  W.  Rufus  and  Henry  the  First,  were  received  by  the  common  consent  of  the 
people.  And  Stephen's  words  were,  Ego  Stephanus,  Dei  gratia,  assensu  cleri  &,  populi 
in  regno  Angliae  electus,  &c.  'I,  Stephen,  by  the  Grace  of  God,  and  Consent  of  the 
Clergy  and  People  chosen  King  of  England,'  &c.  So  King  John  was  chosen,  tarn 
cleri  quam  populi  unanimi  consensu  &  favore;  '  By  the  Favor  and  Unanimous  Consent 
of  the  Clergy  and  People ; '  And  his  Queen  is  said  to  have  been  crowned  de  communi 
consensu  &  concordi  voluntate  archie piscoporum,  comitum,  baronum,  cleri  &  populi 
totius  regni,  i.e.  '  By  the  common  assent  and  unanimous  good  will  of  the  Archbishops, 
Bishops,  Counts,  Barons,  Clergy  and  People  of  the  whole  Kingdom.'  King  Edw.  I  also 
desired  money  of  the  commune  concilium,  or  Parliament,  'As  you  have  given  in  my  time, 
and  that  of  my  progenitors,  Kings,'  &c. 

"  All  which  shows,  that  it  was  antecedent  to  the  Great  Charter ;  not  the  rights 
therein  repeated  and  confirmed,  but  the  Act  itself. 

"  And  King  John's  resignation  of  the  crown  to  the  Pope,  being  questioned  upon  some 
occasion  in  Edward  Ill's  time,  it  was  agreed  upon,  'That  he  had  no  Power  to  do  it, 
without  the  Consent  of  the  Dukes,  Prelates,  Barons  and  Commons.'  "  —  "Select  Works 
of  William  Penn  "  (London,  1771),  376  et  seq. 

1  "Odyssey,"  XIV,  239;  cf.  Borgeaud,  "Histoire  du  Plebiscite,"  3,  7. 

2  Borgeaud,  "Histoire  du  Plebiscite,"  41. 

3  "De  Moribus  Germanize,"  XI  et  seq.;   Kemble,  "The  Saxons  in  England,"  II, 
185,  186.     Cf.  Hodgkin,  "Italy  and  Her  Invaders,"  III,  261,  262. 


PRIMITIVE   POPULAR   ASSEMBLIES  5 

necessity.     To  Kemble  l  "the  foundation  of  a  representative  system 
seems  laid  a  priori  and  in  the  nature  of  things  itself." 

So  Freeman2  says :  — 

"The  primary  Assembly  is  the  natural  form  of  free  government  for  the  wan- 
dering band,  for  the  group  of  households  settled  in  their  mark,  for  the  tribe  gath- 
ered within  the  walls  of  a  city.  It  begins  to  break  down  even  when  it  is  applied  to 
a  gau  or  Canton  of  a  larger  size ;  it  utterly  breaks  down  when  it  is  applied  to  a 
nation.  The  representative  Assembly  is  as  much  the  natural  form  of  free  govern- 
ment for  the  greater  society  as  the  primary  Assembly  is  for  the  smaller." 

But  however  natural  this  may  appear  as  an  "&  priori"  explanation, 
the  historical  fact  seems  to  be  that  the  folkmoot  lost  its  functions 
through  the  growth  of  aristocratic  and  monarchical  tendencies.  Thus 
in  Sparta  the  powers  of  the  popular  assembly  (cnreXXa)  were  ab- 
sorbed by  the  college  of  ephors.3  In  Rome  the  comitia  tributa,  last 
of  the  three  successive  popular  assemblies,  lost  its  functions  in  the 
absolutism  of  the  empire.  Even  among  the  liberty-loving  Germans 
the  chieftain  came,  in  course  of  time,  to  envy  and  appropriate 
"one  of  the  most  splendid  prerogatives  of  the  Roman  Emperor  —  his 

1  "The  Saxons  in  England,"  II,  191-193.  Following  are  his  reasons  for  this  con- 
clusion :  — 

"In  a  country  overrun  with  forests,  intersected  with  deep  streams  or  extensive 
marshes,  and  but  ill  provided  with  the  means  of  internal  communication,  suit  and  service 
even  at  the  county-court  must  have  been  a  hardship  to  the  cultivator ;  a  duty  performed 
not  without  danger,  and  often  vexatiously  interfering  with  agricultural  processes  on 
which  the  hopes  of  the  year  might  depend.  Much  more  keenly  would  this  have  been 
felt  had  every  freeman  been  called  upon  to  attend  beyond  the  limits  of  his  own  shire, 
in  places  distant  from,  and  totally  unknown  to  him ;  how,  for  example,  would  a  cultiva- 
tor from  Essex  have  been  likely  to  look  upon  a  journey  into  Gloucestershire  at  the 
severe  season  of  Christmas,  or  the,  to  him,  important  farming  period  of  Easter  ?  What 
moreover  could  he  care  for  general  laws  affecting  many  districts  beside  the  one  in  which 
he  lived,  or  for  regulations  applying  to  fractions  of  society  in  which  he  had  no  interest  ? 
For  the  Saxon  cultivator  was  not  then  a  politician;  nor  were  general  rules  which  em- 
braced a  whole  kingdom  of  the  same  moment  to  him,  as  those  which  might  concern  the 
little  locality  in  which  his  alod  lay.  Or  what  benefit  could  be  expected  from  his  attend- 
ance at  deliberations  which  concerned  parts  of  the  country  with  whose  mode  of  life  and 
necessities  he  was  totally  unacquainted  ?  Lastly,  what  evil  must  have  resulted  to  the 
republic  by  the  withdrawal  of  whole  populations  from  their  usual  places  of  employment, 
and  the  congregating  them  in  a  distant  and  unknown  locality?" 

Cf.  Fiske,  "American  Political  Ideas,"  69,  70 ;  Hodgkin,  "Italy  and  Her  Invaders," 
III,  260. 

1  "Comparative  Politics,"  221,  222. 

3  Borgeaud,  "  Histoire  du  Plebiscite,"  9. 


6  THE   PEOPLE'S   LAW 

power  of  legislation."  *  Later  still  it  was  the  monarch  under  whom 
"the  liberties  of  the  Netherlands  were  treated  with  contempt,"  2  who 
there  summoned  the  first  States- General. 

Rousseau 3  has  an  explanation  which,  if  not  altogether  his- 
torical,4 is  at  least  suggestive  and  deserving  of  thoughtful  consid- 
eration. 

"So  soon  as  the  service  of  the  state  ceases  to  be  the  principal  business  of 
the  citizens,"  he  says,  "and  they  prefer  to  render  aid  with  their  purses  rather  than 
their  persons,  the  state  is  already  on  the  brink  of  ruin.  Is  it  necessary  to  march 
to  battle,  they  pay  troops  and  remain  at  home ;  is  it  necessary  to  go  to  the  council, 
they  elect  deputies  and  remain  at  home.  As  a  result  of  indolence  and  wealth, 
they  at  length  have  soldiers  to  enslave  their  country  and  representatives  to 
sell  it.  ...  The  decline  of  patriotism,  and  active  pursuit  of  private  interests, 
the  vast  size  of  states,5  conquests  and  abuses  of  government,  have  suggested 
the  plan  of  deputies  or  representatives  of  the  people  in  the  assemblies  of  the 


It  has  been  the  fashion,  nevertheless,  in  some  quarters  to  bestow 
much  praise  upon  this  delegate  system  of  legislation  which,  in  place 
of  the  folkmoot,  though  generally  long  after  its  disappearance,6  has 

1  Jenks,  "Law  and  Politics  in  the  Middle  Ages,"  18. 

2  "  Encyclopaedia  Britannica,"  XII,  76 ;  spoken  of  "  Philip  the  Good"  of  Burgundy. 

3  "Contrat  Social"  (Tozer's  Translation,  London,  1895),  Chap.  XV. 

4  But  cf.  Kemble,  "The  Saxons  in  England,"  II,  193,  where  the  author,  speaking 
of  the  probable  disinclination  of  the  Saxon  peasant  to  attend  the  folkmoots  of  the 
larger  districts,  observes :  — 

"  To  the  rich  and  powerful  neighbor  whose  absence  from  his  farms  was  immaterial 
while  his  bailiffs  remained  on  the  spot  to  superintend  their  cultivation ;  to  the  scirgerefa, 
the  ealdorman,  the  royal  reeve,  or  royal  thane,  familiar  with  the  public  business,  and 
having  influence  and  interest  with  the  king ;  to  the  bishop  or  abbot,  distinguished  for 
his  wisdom  as  well  as  for  his  station ;  to  any  or  all  of  these  he  would  be  ready  to  commit 
the  defence  of  his  small,  private  interests,  satisfied  to  be  virtually  represented  if  he  were 
not  compelled  to  leave  the  business  and  the  enjoyments  of  his  daily  life." 

6  If  "the  vast  size  of  states"  was  a  reason  for  the  decline  of  the  popular  assembly, 
later  history  has  demonstrated  that  this  is  no  permanent  or  insurmountable  obstacle 
to  the  system  of  popular  approval  of  laws.  However  necessary  it  may  have  been  to 
collect  the  people  in  one  place  in  order  to  consult  them  in  an  age  when  reading  and 
writing  were  unknown  or  confined  to  a  select  few,  and  when  means  of  communication 
were  primitive  and  inefficient,  the  progress  of  education  and  invention  has  steadily 
lessened  this  necessity. 

8  "  Parliamentary  government  is  nothing  else  than  a  more  or  less  recently  invented 
piece  of  political  mechanism.  ...  In  1788  —  the  year  before  that  meeting  of  the 
French  States-General  which  opened  the  revolutionary  drama  —  parliamentary  insti- 
tutions were,  broadly  speaking,  the  exclusive  possession  of  the  English  people.  They 
existed  only  in  England  or  in  countries  which  were  or  had  been  colonies  or  dependencies 
of  England.  In  Denmark  and  in  Sweden  indeed,  parliaments  had,  at  dates  which 


PRIMITIVE   POPULAR   ASSEMBLIES  7 

almost  everywhere  been  substituted.  Speaking  of  the  origin  of  the 
delegate  system  in  the  country  where  it  seems  to  have  appeared  first 
in  the  post- classical  age,1  John  Fiske  declared : 2  - 

"It  was  one  of  the  greatest  steps  ever  taken  in  the  political  history  of 
mankind.  ...  In  these  four  discreet  men  sent  to  speak  for  their  township 
in  the  old  county  assembly,  we  have  the  germ  of  institutions  that  have  ripened 
into  the  House  of  Commons  and  into  the  legislatures  of  modern  kingdoms  and 
republics." 

A  later  eulogist3  is  still  more  pronounced. 

"We  believe,"  he  says,  "that  a  representative  form  is  the  best.  Its  theory 
is  that  as  men  in  their  private  affairs  usually,  all  things  being  equal,  choose 
the  best  tailor,  the  best  shoemaker,  the  best  lawyer,  and  the  best  doctor  they  can 
get,  having  regard,  not  only  to  their  knowledge  and  their  skill,  but  also  to  their 
honesty,  they  will  use  like  discretion  in  choosing  their  political  agents." 

were  then  still  recent,  been  powerful,  but  in  these  countries  they  had  been,  or  were  about 
to  be,  abolished,  and  in  each  case  the  triumph  of  the  crown  was  due  to  the  favor  of 
the  people."  — Dicey,  "Will  the  Form  of  Parliamentary  Government  be  Permanent?" 
Harvard  Law  Review,  XIII,  72. 

In  England  the  delegate  parliament  dates  from  the  thirteenth  century,  but  even 
its  earliest  appearance  was  after  direct  popular  legislation  had  been  in  vogue  for 


1  Mr.  Hannis  Taylor  in  his  "Origin  and  Growth  of  the  English  Constitution," 
429,  observes  that  "the  representative  principle  .  .  .  has  been  called  'a  Teutonic 
invention.'"     But  it  may  well  be  questioned  if  the  principle  was  not  applied  by  the 
classical  nations.     Besides  the  Amphyktionic  Council  (conceded  by  Fiske  in  connec- 
tion with  the  passage  quoted  in  the  text  to  afford  an  Hellenic  instance)  and  the  Achaian 
League,  which  is  even  more  in  point,  was  not  the  primitive  Roman  tribune  truly  the 
representative  of  his  plebeian  constituency  when,  to  voice  its  demands,  he  went  before 
the  patrician  Senate  ?     Or,  when,  in  the  exercise  of  his  extraordinary  power  of  inter- 
cession, he  placed  a  check  upon  the  entire  legislative  machinery  of  the  republic?     See 
Ihne,  "History  of  Rome,"  I,  149,  151. 

Rousseau,  however,  would  call  the  tribunes  "deputies"  rather  than  "representa- 
tives." 

"It  is  very  singular,"  he  says,  "that  in  Rome,  where  the  tribunes  were  so  sacred, 
it  was  not  even  imagined  that  they  could  usurp  the  functions  of  the  people,  and  in  the 
midst  of  so  great  a  multitude  they  never  attempted  to  pass,  of  their  own  accord,  a 
single  plebiscitum.  .  .  .  To  explain,  however,  in  what  manner  the  tribunes  sometimes 
represented  it  (the  nation),  it  is  sufficient  to  understand  how  the  government  represents 
the  sovereign.  The  law  being  nothing  but  the  declaration  of  the  general  will,  it  is 
clear  that  in  their  legislative  capacity  the  people  cannot  be  represented ;  but  they  can 
and  should  be  represented  in  the  executive  power,  which  is  only  force  applied  to  law.  .  .  . 
It  is  certain  that  the  tribunes,  having  no  share  in  the  executive  power,  could  never 
represent  the  Roman  people  by  right  of  their  office,  but  only  by  encroaching  on  the 
rights  of  the  Senate."  —  "Contrat  Social,"  Chap.  XV. 

2  "American  Political  Ideas,"  70,  71. 

3  President  U.  M.  Rose  in  his  annual  address  before  the  American  Bar  Associa- 
tion, 1902;   American  Bar  Association  Reports,  XXV,  239. 


8  THE   PEOPLE'S   LAW 

Nor  is  this  merely  the  traditional  note  of  Anglo-Saxon  optimism. 
M.  Laveleye  l  was  hardly  less  of  a  panegyrist  when  he  wrote :  — 

"The  apex  of  free  and  democratic  institutions  is  the  parliamentary  system. 
It  is  by  this  system  that  a  country  governs  itself.  Thanks  to  it  all  that  a  nation 
possesses  of  science  and  experience  centred  in  the  elective  chambers  makes  the 
law." 

Nor  M.  Vacherot 2  when  he  declared :  — 

"Parliamentary  government  is  more  necessary  to  republican  democracy 
than  all  the  rest  of  the  system." 

But  keen  observers  of  political  tendencies  have  noticed  of  late 
years  a  reaction  from  the  favorable  opinion  once  entertained  of  dele- 
gate legislation.3 

"At  present,  as  far  as  one  can  see,"  says  Godkin,  "the  democratic  world  is 
filled  with  distrust  and  dislike  of  its  parliaments,  and  submits  to  them  only  under 
the  pressure  of  stern  necessity.  .  .  .  They  [democracies]  seem  to  be  getting 
tired  of  the  representative  system.  In  no  country  is  it  receiving  the  praises  it 
received  forty  years  ago."  4 

Another  has  said  :  — 

"The  American  people  are  fairly  content  with  their  executive  and  judicial 
departments  of  government,  but  they  feel  that  their  law-making  bodies  have 
painfully  failed.  This  conviction  pertains  to  all  grades  of  legislatures,  municipal, 
state,  and  federal.  .  .  .  This  demoralization  of  legislative  bodies,  these  ten- 
dencies to  restrict  legislation,  must  be  viewed  as  a  profoundly  alarming  feature 
of  American  politics."  5 

Such  expressions  are  not  confined  to  the  writers  of  one  country. 

"I  do  not  think,"  observes  Mr.  Lecky,8  "there  is  any  single  fact  which  is 
more  evident  to  impartial  observers  than  the  declining  efficiency  and  the  lowered 
character  of  parliamentary  government.  The  evil  is  certainly  not  restricted  to 
England.  All  over  Europe,  and,  it  may  be  added,  in  a  great  measure  in  the 
United  States,  complaints  of  the  same  kind  may  be  heard.  A  growing  distrust 
and  contempt  for  representative  bodies  has  been  one  of  the  most  characteristic 

1  "Le  Regime  Parlementaire  et  la  democratic,"  Revue  des  Deux-Mondes,  15  Dec., 
1882,  826. 

2  "La  Republique  Constitutionelle  et  parlementaire,"  Revue  des  Deux-Mondes, 
15  Nov.,  1879. 

3  One  sign  of  this  is  the  almost  universal  change  from  annual  to  biennial  sessions. 
(See  Pavey,  "Modern  State  Constitutions,"  Magazine  of  American  History,  XXIII, 
158)  and  the  recent  experiments  of  Alabama  and  Mississippi  in  quadrennial  sessions. 

4  "The  Decline  of  Legislatures,"  Atlantic  Monthly,  LXXX,  51. 
8  Commons,  "Proportional  Representation,"  i,  8. 

*  "Democracy  and  Liberty,"  I,  142,  143. 


PRIMITIVE   POPULAR   ASSEMBLIES  9 

features  of  the  closing  years  of  the  nineteenth  century.  In  most  countries,  as 
we  have  already  seen,  the  parliamentary  system  means  constantly  shifting  gov- 
ernment, ruined  finances,  frequent  military  revolts,  the  systematic  management 
of  constituencies.  In  most  countries  it  has  proved  singularly  sterile  in  high 
talent.  It  seems  to  have  fallen  more  under  the  control  of  men  of  an  inferior 
stamp;  of  skilful  talkers  or  intriguers,  or  sectional  interests  of  small  groups; 
and  its  hold  upon  the  affection  and  respect  of  nations  has  visibly  diminished." 

Mr.  Dicey  writes  in  a  similar  vein :  — 

"Faith  in  Parliaments,"  he  declares,1  "has  undergone  an  eclipse;  in  propor- 
tion as  the  area  of  representative  government  has  extended,  so  the  moral  au- 
thority and  prestige  of  representative  government  has  diminished  .  .  .  The  pro- 
posals for  elaborate  schemes  of  proportional  representation,  the  denunciation  of 
the  party  system  by  brilliant  and  weighty  writers  who  express  in  language  which 
few  men  can  command  sentiments  which  thousands  of  men  entertain,  all  bear 
witness  to  the  widespread  distrust  of  representative  systems  under  which  it,  occa- 
sionally at  least,  may  happen  that  an  elected  Parliament  represents  only  the 
worst  side  of  a  great  nation." 

In  this  distrustful  and  reactionary  mood,  modern  democracy  is 
groping  its  way  toward  some  system  by  which  it  may  legislate  for 
itself.  As  Mr.  Godkin  observes :  — 

"There  are  signs  of  a  strong  disposition,  which  the  Swiss  have  done  much 
to  stimulate,  to  try  the  'referendum'  more  frequently,  on  a  larger  scale,  as  a  mode 
of  enacting  laws."  2 

Rousseau  anticipated  all  these  utterances;  more  than  a  century 
previous  he  had  written:  — 

"The  deputies  of  the  people  ...  are  not  and  cannot  be  its  representatives; 
they  are  only  its  commissioners  and  can  conclude  nothing  definitely.  Every  law 
which  the  people  in  person  have  not  ratified  is  invalid;  it  is  not  a  law.  .  .  . 
The  idea  of  representatives  is  modern ;  it  comes  to  us  from  feudal  government, 
that  absurd  and  iniquitous  government,  under  which  mankind  is  degraded  and 
the  name  of  man  dishonoured."  3 

We  need  not  now  pause  to  consider  whether  these  criticisms  of 
the  delegate  system  are  justified.  If  the  summary  attempted  above 
is  correct,  that  system  is  but  a  stage  in  the  evolution  of  democracy, 
-perhaps  a  necessary  stage  for  all  nations  travelling  toward  that 
goal  and  even  a  final  stage  for  some,  since  advancement  beyond  it 
implies  a  capacity  for  self-government  not  hitherto  demonstrated  by 

1  13  Harvard  Law  Review,  73,  74. 

2  "The  Decline  of  Legislatures,"  Atlantic  Monthly,  LXXX,  51. 

3  "Contrat  Social,"  Chap.  XV. 


10  THE  PEOPLE'S   LAW 

all.  But  the  complete  evolution  of  legislative  sovereignty  thus  ap- 
pears to  constitute  a  cycle.  Beginning  with  a  system  more  or  less 
popular,  we  find  this  succeeded  by  a  monarchical  and  then  a 
delegate  system  which,  hi  turn,  are  supplanted  by  one  completely 
direct  and  popular.  To  show  in  detail  how  this  cycle,  so  far  as  com- 
pleted, has  been  accomplished,  is  the  principal  theme  of  this  work. 


CHAPTER  II 
SURVIVALS  OF  POPULAR  LAW-MAKING 

A.   Persistence  of  the  Folkmoot  Idea 

WHILE  the  folkmoot  generally  declined  and  disappeared,  forms 
and  survivals  of  it  continued  much  longer  and  throughout  much 
wider  areas  than  is  commonly  supposed.  Thus  in  Italy  the  tradi- 
tion of  the  Roman  popular  assemblies  appears  to  have  lasted  all 
through  the  Middle  Ages  and  to  have  been  sufficiently  strong  toward 
the  close  of  that  era  to  assist  in  reviving  the  original  in  the  form  of 
the  Parlamento,  or  general  assembly  of  the  Italian  communes.1  The 
Basque  folkmoot  of  northern  Spain,  which  met  under  the  historic 
Guernica  oak  2  in  Vizcaya,  enacted  fueros  for  more  than  five  cen- 
turies 3  and  only  lost  its  functions  finally  in  1876.  Even  in  Visi- 

1  Wolfson,  "The  Ballot  and  Other  Forms  of  Voting  in  the  Italian  Communes," 
American  Historical  Review,  V,  3. 

2  "  Oak  of  Guernica !     Tree  of  holier  power 
Than  that  which  in  Dodona  did  enshrine 
(So  faith  too  fondly  deemed)  a  voice  divine, 
Heard  from  the  depths  of  its  aerial  bower, 
How  canst  thou  flourish  at  this  blighting  hour? 
What  hope,  what  joy,  can  sunshine  bring  to  thee, 
Or  the  soft  breezes  from  the  Atlantic  sea, 
The  dews  of  morn,  or  April's  tender  shower? 
Stroke  merciful  and  welcome  would  that  be 
Which  should  extend  thy  branches  on  the  ground, 
If  never  more  within  their  shady  round 
These  lofty-minded  Lawgivers  shall  meet, 
Peasant  and  lord,  in  their  appointed  seat, 
Guardians  of  Biscay's  ancient  Liberty." 

—  WORDSWORTH,  "The  Oak  of  Guernica"  (1810). 

3  "The  lawmakers  of  Vizcaya  were  duly  chosen  by  their  fellow-nobles  for  every 
Basque  held  the  rank  of  hidalgo  or  son  of  somebody.  The  deputies  met  every  two 
years  in  the  village  of  Guernica,  sitting  on  stone  benches  in  the  open  air  beneath  the 
sacred  oak  and  there  elected  the  Senores  de  Vizcaya.  Even  the  kings  of  Spain  were 
allowed  no  grander  title,  but  had  to  come  to  the  Tree  of  Guernica,  at  first,  in  person, 
later  by  deputy,  and  there  swear  to  observe  the  ftieros.  To  this  green  shadow  came 
the  peasant  from  his  lonely  farmhouse,  high  on  the  mountain  side,  to  answer  before 

n 


12  THE   PEOPLE'S   LAW 

gothic  Spain,  laws  were  "made  in  the  national  councils  held  at 
Toledo,  in  concert  with  the  bishops  and  grandees  of  the  realm,  and 
with  the  assent,"  though  "more  frequently  presumed  than  expressed, 
of  the  people."  * 

The  popular  assembly  continued,  among  the  Teutonic  peoples  of 
whom  Tacitus  writes,  far  down  into  historic  times.  We  find  it 
among  the  north  Germans  of  Saxony 2  and  the  south  Germans  of 
Bavaria.3  According  to  Laveleye  4  in  Westphalia  and  Hanover  until 
quite  recently  "the  inhabitants  assembled  to  deliberate  on  all  that 
concerned  cultivation,  and  to  determine  the  order  and  time  of  the 
various  agricultural  operations."  In  the  German  provinces  of  the 
Prankish  Empire  general  assemblies  were  held  annually  under 
Charlemagne,  which,  while  no  longer  of  that  ancient  popular  sort, 
were  yet  survivals  of  the  old.5 

It  is  found  in  Friesland  6  and  Holland,7  continuing  in  the  form  of 

his  peers  to  such  charges  as  might  be  brought  against  him;  for  within  the  sanctuary 
of  his  home  the  law  could  lay  no  hand  on  him  or  his. 

"It  was  the  Carlist  wars  that  changed  all  this.  Thefwros,  of  which  a  list  dating 
from  1342  is  still  extant,  granted  the  Basque  provinces  a  Republican  Constitution  that 
almost  realized  an  ideal  democracy  with  immunity  for  taxes  save  for  their  own  needs 
and  from  military  service  beyond  their  own  boundaries.  But  when  the  dynastic  strife 
broke  out,  the  Basques  put  on  the  white  cap  of  Don  Carlos  and  bore  the  brunt  of  the 
conflict.  ...  At  the  close  of  the  second  Carlist  war  in  1876  Alfonso  XII  signalized 
his  victory  by  meting  out  to  them  a  terrible  punishment,  abrogating  the  precious  fueros 
that  the  tree  of  Guernica  had  guarded  for  so  many  centuries."  —  Bates,  "  Spanish 
Highways  and  Byways,"  367,  368. 

The  Spanish  Codigo  Civil  enacted  in  1889  for  the  whole  peninsula  nevertheless 
expressly  (Art.  10)  leaves  in  force  for  the  Basques  a  portion  at  least  of  the  Fuero  de 
Vizcaya. 

Guizot,  "Representative  Government"  (Scoble's  Trans.,  London,  1861),  216. 

Gomme,  "Primitive  Folkmoots,"  35  et  seq, 

Jenks,  "  Law  and  Politics  in  the  Middle  Ages,"  20. 

"Primitive  Property,"  in. 

Waitz,  "Die  Verfassung  des  Frankischen  Reichs,"  Dritter  Band,  bl.  558,  567, 

57J>  572,  578>  S96- 

6  Gomme,  "Primitive  Folkmoots,"  35.     Of  the  early  folkmoot  in  this  region,  Green 
says :   "  Here  new  settlers  were  admitted  to  the  freedom  of  the  township,  and  bye -laws 
framed  and  headman  and  tithing-man  chosen  for  its  governance.     Here  ploughland 
and  meadowland  were  shared  in  due  lot  among  the  villagers,  and  field  and  homestead 
passed  from  man  to  man  by  the  delivery  of  a  turf  cut  from  its  soil.     Here  strife  of 
farmer  with  farmer  was  settled  according  to  the  customs  of  the  township  as  its  elder 
men  stated  them,  and  four  men  were  chosen  to  follow  headman  or  ealdorman  to  hundred- 
court  or  war.     It  is  with  reverence  such  as  is  stirred  by  the  sight  of  the  head-waters 
of  some  mighty  river  that  one  looks  back  to  these  village-moots  of  Friesland  or  Sleswick. 
It  was  here  that  England  learned  to  be  a  'mother  of  Parliaments.'"  —  "History  of  the 
English  People,"  I,  13. 

7  Laveleye,  "Primitive  Property,"  in,  284. 


SURVIVALS   OF   POPULAR    LAW-MAKING  13 

the  markmoot1  and  as  the  assembly  of  burghers.2  In  England,  lay- 
ing aside  the  controversy  as  to  the  character  of  the  tungemote,3  the 
shire-moot,  in  Kent  at  least,  seems  to  have  considered  and  approved 
laws  as  late  as  a  century  before  the  Conquest,4  while  it  is  claimed  that 
a  popular  assembly  exercised  similar  functions  in  London  much  later.5 
The  popular  assembly  is  found  among  the  Scandinavians,  both 
in  continental  Europe  8  and  in  Iceland,7  lasting  in  the  latter  country 
down  to  the  nineteenth  century.8  Not  less  important  and  hardly 
less  tenacious  was  its  foothold  among  the  Slavs.9 

1  "Formerly  the  partners  in  the  mark  met  once  a  year,  on  St.  Peter's  day,  in  a 
general  assembly,  halting.     They  appeared  in  arms ;  and  no  one  could  absent  himself, 
under  pain  of  a  fine.     This  assembly  directed  all  the  details  as  to  the  enjoyment  of 
common  property;  appointed  the  works  to  be  executed;  imposed  pecuniary  penalties 
for  the  violation  of  rules,  and  nominated  the  officers  charged  with  the  executive  power, 
the  markenrighter  and  his  assessors."  —  Laveleye,  283. 

2  "In  the  i3th  century,  when  any  greater  matter  had  to  be  discussed  in  a  city, 
all  citizens  were  summoned  by  ring  of  the  great  bell  to  the  public  square,  and  there 
decided  the  question  by  democratic  vote."  — "Encyclopaedia  Britannica,"  XII,  75. 

3  ProfessorW.  J.  Ashley  in  an  article  on  "  The  Anglo-Saxon  Township,"  Quarterly 
Journal  of  Economics,  VIII,  345,  holds  that  there  is  no  authentic  Saxon  evidence  of  "a 
township  assembly  of  any  sort"  ;  that  the  "tun"  was  a  territorial  division  and  had  prob- 
ably not  a  single  constitutional  function;   that  the  notion  of  it  as  a  starting-point  of 
representation  rests  entirely  upon  an  improper  construction  of  the  laws  of  Henry  I, 
—  an  unauthorized  compilation  of  1108-1118  —  and  that  the  manor  and  parish  meet- 
ings are  not  necessarily  survivals  of  the  "tun"  assemblies. 

Stubbs,  however,  had  reached  the  conclusion  that  the  tungemotes  "  may  be  safely 
understood  to  have  had  the  power  of  making  their  own  by-laws."  He  adds,  "The 
word  '  by-laiv '  itself  is  said  to  mean  the  laws  enacted  by  the  township,  the  '  by '  of  the 
Northern  shires."  —  "  Constitutional  History  of  England,"  I,  sec.  43. 

4  Stubbs,  Id.,  sees.  50,  76  ;Kemble,"  The  Saxons  in  England,"  II,  233.  Cf.  post,  15,16. 

5  il  Bar  ones  was  a  term  which  was  commonly  applied  to  the  burgesses  or  citizens 
of  the  city  of  London  in  charters  and  other  public  documents  down  to  the  time  of  Ed- 
ward I.  ...     Now  these  citizens  met  in  their  assembly  and  court  called  the  hustings. 
...     In  this  court  and  assembly  alone  the  cives  had  and  persistently  claimed  the  right 
of  suing  and  being  sued,  and  there  they  elected  their  officers  and  made  ordinances  and 
laws,  etc.  .  .  .     They  seem  to  have  retained  some  of  those  rights  of  regulating  the  laws 
within  their  county  which  all  counties  originally  possessed.     They  were  rulers,  law- 
makers, and  judices"  —  Lewis,  "  Ancient  Laws  of  Wales,"  361,  364,  citing  "Munimenta 
Gildhallae,  Londoniensis,"  II  (Liber  Custumarum)  (Edited  by  Riley),  86-88. 

8  Gomme,  "Primitive  Folkmoots,"  28  et  seq. 

7  Bryce  describes  the  Icelandic  "  things  "  as  follows  :   "  Ordinary  lawsuits  and  ques- 
tions of  local  interest  were  determined  in  these  minor  things,  while  graver  suits,  or 
those  in  which  the  parties  belonged  to  different  things,  or  where  it  was  sought  to  reverse 
the  decision  of  a  local  thing,  as  well  as  all  proposals  for  alterations  of  the  general  law, 
were  brought  before  the  Althing,  at  its  annual  meeting  in  June."  —  "  Studies  in  History 
and  Jurisprudence,"  273. 

8  Id.  272-274. 

9  Kovalevsky,  "Russian  Political  Institutions,"  13  et  seq.;   Laveleye,  "Primitive 
Property,"  m. 


14  THE   PEOPLE'S   LAW 

Speaking  of  the  Russian  principalities  in  the  period  from  the 
eleventh  to  the  thirteenth  centuries,  a  recent  writer  of  that  nationality 

says : l — 

"The  people  kept  its  ancient  right  of  discussing  the  current  affairs  of  the 
state  in  folkmotes,  and  even  of  choosing  its  rulers,  but  on  condition  of  selecting 
them  from  among  the  members  of  the  dynasty  of  Rurik.  The  folkmotes  were 
known  in  old  Russia  under  the  name  of  Veche.  The  chronicles,  when  they  speak 
of  those  summoned  to  these  assemblies,  briefly  note  the  presence  of  all  the  citi- 
zens of  a  definite  urban  division.  Expressions  such  as  the  following  are  also 
more  than  once  met  with  in  the  course  of  the  narrative:  'The  men  of  our  land,' 
'The  whole  land  of  Galich,'  and  so  on.  Hence,  it  is  evident  that  we  have  to  deal 
with  a  thoroughly  democratic  assembly.  .  .  .  The  competence  of  the  Russian 
folkmote  was  as  wide  as  that  of  similar  political  assemblies  among  the  western 
and  southern  Slavs.  More  than  once  it  assumed  the  right  of  choosing  the  chief 
ruler  of  the  land.  .  .  .  The  new  ruler  was  admitted  to  the  exercise  of  sovereign 
power  only  after  having  subscribed  to  a  sort  of  contract  by  which  he  took  upon  him- 
self the  obligation  of  preserving  the  rights  of  those  over  whom  he  was  called  to 
rule.  .  .  .  These  compacts  or  covenants  between  prince  and  people,  so  far  as 
they  are  known  to  us  by  the  few  examples  preserved  by  the  chronicles  of  Novgorod, 
were  a  kind  of  constitutional  charter  securing  to  the  people  the  free  exercise  of 
their  political  rights,  such  as  the  right  of  the  folkmote  to  discuss  public  affairs, 
and  to  elect  the  ruler  of  the  state.  .  .  .  Questions  of  war  and  peace  were  regu- 
larly decided  by  it.  No  war  could  be  begun  but  with  the  consent  of  the  people, 
because  in  the  absence  of  a  regular  army,  the  prince  could  levy  no  other  force 
except  the  militia.  Treaties  of  peace  and  alliance  were  also  signed  in  the  name 
of  the  prince  and  the  people,  as  may  be  seen  from  the  following  words  used  in 
the  treaty  of  Igor  with  the  Byzantine  empire  in  945 :  — 

"'This  treaty  has  been  concluded  by  the  grand  duke  of  Russia,  by  all  the 
dukes  whatsoever,  and  by  all  the  people  of  the  Russian  lands.'  " 

When  Alexander  II  came  to  establish,  in  the  latter  half  of  the 
nineteenth  century,  the  "Zemstvoes,"  in  praise  of  which  so  much  has 
been  written  and  which  were  so  well  utilized  in  the  election  of  the 
first  Douma,  it  was  like  restoring  to  the  rural  Muscovite  communities 
a  fragment  of  their  ancient  privileges,  and  the  lingering  traditions  of 
the  folkmoot  doubtless  had  much  to  do  with  the  success  of  these 
first  steps  toward  popular  autonomy  in  modern  Russia. 

B.   Influence  of  the  Folkmoot  upon  Teutonic  Juridical  Conceptions 

That  the  folkmoot,  in  spite  of  its  decay  in  most  countries,  re- 
tained a  firm  hold  on  the  political  and  legal  conceptions  of  the  Teu- 
tonic peoples,  is  apparent  from  traces  and  survivals,  which  continue 
far  down  into  historic  times  and  which,  indeed,  have  never  wholly 

1  Kovalevsky,  "Russian  Political  Institutions,"  13-17. 


SURVIVALS   OF  POPULAR  LAW-MAKING  15 

disappeared.  One  of  these  was  the  fiction  that  the  people  still  con- 
tinued a  part  of  the  law-making  body,  though  their  privilege  might 
not  actually  be  exercised.  In  the  Frankish  Empire  in  Charlemagne's 
time  the  folkmoot  had  shrunken  to  an  assembly  convened  not  oftener 
than  twice  a  year.1  In  one  of  these  —  the  spring  assembly  —  the 
common  people  are  still  allowed  to  be  present,2  and  though  they  have 
comparatively  little  to  say  in  the  affairs  of  state  or  the  making  of 
laws,3  the  Frankish  assembly  is  nevertheless  characterized  by  a  great 
historian  4  as  "the  mouthpiece  of  the  state  in  which  the  cooperation 
of  ruler  and  people  was  necessary  in  all  matters  of  first  importance." 
In  England,  where  the  folkmoot  declined  more  rapidly  than  on 
the  continent  and  where  its  functions  were  absorbed  by  the  highly 
centralized  witenagemote,  the  fiction  at  least  of  popular  participation 
and  approval  was  retained  up  to  the  time  of  the  Norman  Conquest. 

"There  is  still  reason  to  suppose,"  observes  Kemble,5  "that  the  people  them- 
selves, or  some  of  them,  were  very  often  present,"  and  that  "the  people  who  were 
in  the  neighbourhood,  who  happened  to  be  collected  in  arms  during  a  sitting  of 
the  witan  or  who  thought  it  worth  while  to  attend  their  meeting,  were  very  prob- 
ably allowed  to  do  so,  and  to  exercise  at  least  a  right  of  conclamation." 

So  Lappenberg  6  declares :  — 

"There  is  no  reason  extant  for  doubting  that  every  thane  had  the  right  of 
appearing  and  voting  in  the  witena-gem6t,  not  only  of  his  shire,  but  of  the  whole 
kingdom,  without,  however,  being  bound  to  personal  attendance,  the  absent 
being  considered  as  tacitly  assenting  to  the  resolutions  of  those  present." 

Some  of  the  laws  themselves  contain  expressions  indicating  that 
popular  attendance  and  participation  were  not  altogether  a  fiction. 
Following  is  the  preamble  to  the  dooms  of  Wihtraed  (691-725) :  — 

"In  the  reign  of  the  most  clement  king  of  the  Kent-ishmen,  Wihtraed,  in  the 
fifth  year  of  his  reign,  the  ninth  indiction,  the  sixth  day  of  Rugern,  in  the  place 

1  Waitz,  "Die  Verfassung  des  Frankischen  Reichs"  (Berlin,  1883),  Dritter  Band, 
bl.  581  et  seq.;  Stubbs,  "Constitutional  History  of  England  "  (3d Ed.,  Oxford,  1880),  I, 
122  et  seq.;   Hodgkin,  "Italy  and  her  Invaders"  (Oxford,  1885),  III,  260. 

2  Stubbs,  I,  123. 

3  Waitz,  Dritter  Band,  bl.  584.     Stubbs  (I,  123)  points  out  that  the  functions  of 
the  prince  and  people  have  become  interchanged  since  the  days  of  Tacitus,  the  former 
being  now  assembled  "Propter  consilium  ordinandum"  the  latter  "idem  consilium 
suscipiendum"  and  sometimes  " par Her  tractandum." 

4  Waitz,  Dritter  Band,  bl.  596. 

"The  Saxons  in  England"  (Rev.  Ed.,  London,  1876),  II,  237,  238.    See,  however, 
Beard  (Pol.  Sc.  Quar.,  XXIII,  341,  who  says  the  theory  is  "without  substantiation." 
8  "History  of  England,"  II,  387. 


16  THE   PEOPLE'S   LAW 

which  is  called  Bergham-styde,  where  was  assembled  a  deliberative  convention 
of  the  great  men :  there  was  Birhtwald  archbishop  of  Britain,  and  the  fore-named 
king;  also  the  Bishop  of  Rochester,  the  same  was  called  Gybmund,  was  present; 
and  every  degree  of  the  church  of  that  province  spoke  in  unison  with  the  obedient 
people.  There  the  great  men  decreed,  with  the  suffrages  of  all,  these  dooms  and 
added  them  to  the  lawful  customs  of  the  Kent-ishmen,  as  it  hereafter  saith  and 
declareth."1 

In  theory  then,  as  well,  to  some  extent,  as  in  practice,  the  witen- 
agemote  still  included  the  people,  and  its  powers  were  correspondingly 
exercised  by  them.  Now  the  approval  of  laws  framed  by  the  king 
was  one  of  the  important,  if  not  frequently  exercised,2  functions  of 
this  witan.  "The  king,"  says  Bishop  Stubbs,3  "never  legislates 
by  his  own  ordinance." 

Throughout  Anglo-Saxon  history,  from  Ini 4  (688-726)  and  Alfred  5 
(871-901)  to  Athelstan  6  (925-940),  Edgar 7  (959-975),  and  Ethelred  8 
(978-1016),  and  even  Canute  9  (1017-1035),  the  laws  recite  that  they 
are  the  joint  work  of  the  king  and  the  witan,  the  latter  perpetuating 
the  idea  of  the  ancient  popular  assembly. 

Another  mark  of  the  folkmoot's  influence,  analogous  to,  and  yet 
distinct  from,  that  just  discussed,  was  what  Stubbs  calls 10  the  "recogni- 
tion of  the  importance  of  the  popular  reception  of  a  law."  As  Kemble 
states  it,11  "The  whole  principle  of  Teutonic  legislation  is,  and 
always  was,  that  the  law  is  made  by  the  constitution  of  the  king 
and  the  consent  of  the  people."  This  statement  is  indeed  hardly 
more  than  a  paraphrase  of  an  expression  of  one  of  Charlemagne's 
grandsons,12  and  however  much  that  prince  may  have  ignored  the 

1  Thorpe,  "Ancient  Laws  and  Institutes  of  England"  (1840),  I,  37. 

2  "  Legislation  constituted  but  a  small  portion  of  the  ordinary  business  transacted 
by  the  Imperial  Witenagemot."  —  Palgrave,  "Rise  and  Progress  of  the  English  Com- 
monwealth" (London,  1832),  I,  639. 

3  "Constitutional  History  of  England"  (3d  Ed.,  Oxford,  1880),  I,  194. 

4  Thorpe,  "Ancient  Laws  and  Institutes  of  England"  (1840),  I,  102. 

I  Id.  59.     Cf.  Besant,  "Story  of  King  Alfred"  (New  York,  1901),  133. 
•  Thorpe,  I,   195. 

'  Id.  263. 

8  Id.  281,  293,  305,  341. 

9  Id-  359,  377- 

10  "Constitutional  History  of  England"  (3d  Ed.,  Oxford,  1880),  I,  116. 

II  "The  Saxons  in  England"  (Rev.  Ed.,  London,  1876),  II,  236. 

12  "  Das  Gesetz,  sagt  ein  enkel  Karls,  enstent  durch  Zussttimmung,  des  Volks  und 
Festsetzung  des  Konigs."  — Waitz,  "  Deutsche  Verfassungs  Geschichte"  (Berlin,  1883), 
Dritter  Band,  bl.  605,  citing  Edict.  Pist.  864,  c.  6,  S.  490. 


OF   POPULAR   LAW-MAKING  17 

Practice,  in  theory  he  sought  their  formal  consent  to  the 
enactment  of  all  his  laws.  The  most  famous  part  of  his  legislation 
consisted  of  what  is  known  as  capitularies  — "  those  marvellous 
monuments  of  the  energy  and  far-reaching,  all-embracing  statesman- 
ship of  the  great  Emperor."  l  Yet  even  these  were  brought  before 
the  people  for  their  approval,2  especially  where  they  consisted  of 
additions  to  the  ancient  laws.3  To  accomplish  this,  Charles  em- 
ployed another  famous  institution,  —  the  missi  dominici, — "  who  were, 
so  to  speak,  the  staff  officers  of  his  administration,  sent  into  every 
province  of  his  Empire  to  control  the  actions  of  the  local  courts  in 
the  interests  of  peace  and  righteousness."  4  Thus  in  803,  after  mak- 
ing certain  additions  to  the  Salic  law,  he  instructs  the  missi  dominici 
as  follows :  — 

"Let  the  people  be  interrogated  touching  the  articles  which  have  recently 
been  added  to  the  law;  and  after  they  have  all  consented  to  them,  let  them  affix 
to  the  said  articles  their  signature  in  confirmation.' ' 5 

That  the  confirmation  mentioned  here  will  be  given  is,  appar- 
ently, assumed,  but  the  most  significant  fact  is  that  it  is  considered 
essential. 

The  same  idea  prevailed,  though  less  prominently,  in  other  con- 
tinental states  founded  by  Germanic  tribes.  The  Lombard  king 
Rothari  proclaims  his  code  of  643  in  the  assembly  of  his  chiefs 
at  Pa  via,  "acting  herein  with  the  advice  and  by  the  consent  of  the 
nobles,  the  judges,  and  all  our  most  prosperous  army."  6  Here  the 
army,  which  may  be  supposed  to  have  included  the  able-bodied  men 
of  the  Lombard  nation,  is  treated  as  a  part  of  the  law-making  power. 

1  Hodgkin,  "Italy  and  her  Invaders"   (Oxford,   1899),  VIII,  288.     The  author 
adds:  "The  Capitularies  are  not  and  do  not  pretend  to  be  a  code.     They  are  far  more 
concerned  with  administration  than  with  legislation  properly  so  called,  and  if  they 
must  be  compared  at  all,  should  rather  be  with  the  minutes  or  memoranda  of  the  Eng- 
lish Privy  Council  than  with  the  Codes  of  Justinian  or  Napoleon."     See  Guizot,  "His- 
tory of  Civilization"  (Hazlitt's  Trans.,  London,  1873),  II,  Lecture  21,  for  what  Hodg- 
kin pronounces  a  "more  helpful"  discussion  of  the  capitularies  than  any  other. 

2  Waitz,  "Die   Verfassungs   Geschichte"  (Berlin,    1883),  Dritter  Band,  bl.  595, 
610,  612;  Stubbs,  "  Constitutional  History,"  I,  116. 

3  Guizot,  "History  of  Civilization"  (Hazlitt's  Trans.,  London,  1873),  II,  215. 

4  Hodgkin,  VIII,  207. 

5  Capitularies  An.  803,  sec.   19,  i,  394;  Guizot,  "History  of  Civilization"  (Haz- 
litt's Trans.,  London,  1873),  II,  215. 

6  Hodgkin,  "Italy  and  her  Invaders"  (Oxford,  1895),  VI,  236. 

c 


1 8  THE   PEOPLE'S    LAW 

An  instance  of  what  the  historians  agree  in  considering 1  a  practice 
in  England  similar  to  that  in  Charlemagne's  empire  as  above  de- 
scribed occurs  as  late  as  the  reign  of  Athelstan  (925-940).  The 
bishop  and  all  the  thegns  of  Kent  "eorl  and  ceorl"  return  their 
thanks  to  the  king  for  what  he  has  been  pleased  to  ordain  respect- 
ing their  peace  and  to  inquire  and  consult  concerning  their  advantage 
since  great  was  the  need  of  them  all  both  rich  and  poor.  And  they 
declare  that  they  have  taken  this  in  hand  with  as  much  diligence  as 
possible  with  the  aid  of  those  wise  men  whom  the  king  had  sent 
them.2 

"I  do  not  believe  ^Ethelstan's  witan  in  Wessex  to  have  passed  a  law,"  says 
Kemble,3  "and  then  his  witan  in  Kent  to  have  accepted  or  confirmed  it.  I  be- 
lieve his  witan  from  all  England  to  have  made  certain  enactments,  which  the 
proper  officers  brought  down  to  the  various  shires,  and  in  the  shiremoots  there 
took  pledge  of  the  shire-thanes  that  they  accepted  and  would  abide  by  the  prem- 
ises; just  as  in  the  case  quoted." 

Elsewhere,  referring  to  the  same  document,  he  says : 4  — 

"The  passage  in  the  text  seems  to  presuppose  an  interchange  of  oaths  and 
pledges  between  the  king  and  witan  themselves;  and  even  those  who  had  no 
standing  of  their  own  in  the  folcmot  or  scirgemot  were  required  to  be  bound  by 
personal  consent.  .  .  .  We  have  seen  one  way  in  which  that  consent  was  ob- 
tained, viz.  by  sending  the  capitula  down  into  the  provinces  or  shires,  and  taking 
the  wed  in  the  shiremoot." 

Again,  in  the  reign  of  the  same  king  (Athelstan),  it  is  stated  - 

"that  all  the  witan  gave  their  pledges  [weds]  altogether  to  the  archbishop,  when 
^Elfeah  Stybb  and  Brithnoth,  Odda's  son,  came  to  meet  the  gemot,  by  the  king's 
command ;  that  each  reeve  should  take  the  wed  in  his  own  shire  that  they  would 
all  hold  the  frith  [peace]  as  King  Athelstan  and  the  witan  had  counselled  it.' ' 5 

And  the  collection  of  laws  known  as  "  Judicia  Civitatis  Loun- 
doniae,"  is  prefaced  by  the  statement  that  these  laws  "were  con- 
firmed by  the  oaths  and  pledges  of  all,  both  eorls  and  churls.11 6  These, 

1  See  Kemble,  "The  Saxons  in  England"  (Rev.  Ed.,  London,   1876),  II,  233. 
Stubbs,  "Constitutional  History  of  England"  (3d  Ed.,  Oxford,    1880),  I,  115,  refers 
to  this  as  showing  that  "some  shadow  of  legislative  authority  seems  to  have  remained 
to  it  (the  shiremoot)  in  the  time  of  Athelstan."     Cf.  Id.  195. 

2  The  Latin  text  is  given  in  Thorpe,  "Ancient  Laws  and  Institutes  of  England" 
(1840),  I,  216. 

3  "The  Saxons  in  England"  (Rev.  Ed.,  London,  1876),  II,  234,  note. 

4  "  The  Saxons  in  England  "  (Rev.  Ed.,  London,  1876),  II,  236,  237. 

5  "Judicia  Civitatis  Loundoniae,"  Cox,  "Antient  Parliamentary  Elections"  (Lon- 
don, 1868),  34.  6  Id. 


SURVIVALS   OF   POPULAR  LAW-MAKING  19 

and  other  passages  from  the  Saxon  laws,  lead  Cox  to  declare  that  "the 
acts  of  the  witenagemote  were  considered  to  acquire  force  from  the 
oath  which  the  people  took  to  observe  them."  * 

The  notion  that  an  English  law  was  not  completely  in  force  until 
it  had  received  the  assent  and  confirmation  of  the  people  survived 
even  the  shock  of  the  Norman  Conquest  and  lasted  down  to  modern 
times.  "When  parliamentary  institutions  were  established,"  says 
Cox,2  "the  practice  prevailed  for  many  centuries  of  sending  the 
statutes  at  the  end  of  each  session  to  be  proclaimed  by  the  sheriff 
in  each  county  court."  And  when,  after  a  prolonged  and  bitter 
struggle,  the  Great  Charter  was  at  last  wrung  from  the  unwilling 
John,  it  "was  sent  down  into  the  country  and  sworn  to  at  hundred- 
motes  and  town-motes  under  order  from  the  king."  3  We  shall  find 
the  same  course  followed  more  than  four  centuries  later  with  refer- 
ence to  the  Solemn  League  and  Covenant  which  bound  England 
with  her  northern  neighbor.4  These  were  no  accidental  or  isolated 
instances.  They  recalled  a  time  when  the  consent  of  the  people, 
which  had  then  become  largely  a  form,  had  been  a  reality,  and  they 
presaged  a  time  when  the  reality  should  once  more  supplant  the  form. 

C.    The  Craft  Guilds  and  their  Ordinances 

Bishop  Stubbs  5  calls  attention  to  the  fact  that  "the  national  cus- 
toms which  belong  to  the  lowest  range  of  machinery  are  subject  to 
the  fewest  organic  changes,"  and  it  is  in  the  local  and  obscure  rather 
than  the  conspicuous  and  highly  developed  institutions  that  we  are 
to  look  for  the  longest  survivals  of  the  idea  embodied  in  the  folkmoot. 
We  have  seen 8  that  actual  popular  legislation  in  England  lasted 
longest  in  the  local  bodies.  After  it  ceased  there  it  continued  to  be 
practised  in  certain  organizations  which,  though  unofficial,  played  an 
important  part  in  the  social  and  economic  life  of  England  from  the 

1  "  Judicia  Civitatis  Loundoniae,"  Cox,  "  Antient  Parliamentary  Elections"  (Lon- 
don, 1868),  34. 

2  Id. 

3  Pearson,  "History  of  England  during  the  Early  and  Middle  Ages"  (London, 
1867),  II,  94,  95.     The  Charter  was  republished    upon  the  accession  of  Henry  III 
(Stubbs,  "Constitutional  History"  [>d  Ed.],  II,  21),  and  the  same   author  (I,  116) 
refers  to  the  measures  taken  for  its  publication  and  preservation  as  an  example  of  the 
notion  discussed  in  the  text. 

4  See  post,  Chap.  VI. 

6  "Constitutional  History  of  England"  (3d  Ed.,  Oxford,  1880),  I,  91. 
8  Ante,  13,  15. 


20  THE   PEOPLE'S   LAW 

Saxon  period  on  to  the  sixteenth  and  seventeenth  centuries  and  were, 
in  a  way,  the  prototypes  of  our  modern  corporations,  both  private 
and  municipal,  and  appear  to  have  been  an  offshoot  of  the  primitive 
Saxon  civil  community. 

"As  regards  Guilds,"  observes  Maine,1  "I  certainly  think  .  .  .  that  they 
have  been  much  too  confidently  attributed  to  a  relatively  modern  origin;  and 
that  many  of  them,  and  much  which  is  common  to  all  of  them,  may  be  suspected 
to  have  grown  out  of  the  primitive  brotherhoods  of  co-villagers  and  kinsmen. 
.  .  .  Anybody  who,  with  a  knowledge  of  primitive  law  and  history,  examines 
the  internal  mechanism  and  proceedings  of  a  London  Company  will  see  in  many 
parts  of  them  plain  traces  of  the  ancient  brotherhood  of  kinsmen,  'joint  in  food, 
worship  and  estate.'"2 

It  was  natural  that  organizations  thus  connected  should  preserve 
many  features  of  the  old  order  and  among  these  was  the  system  of 
making  laws.  The  guild  statutes  are  the  most  interesting,  as  they 
are  the  most  abundant,  remains  of  the  institutions  themselves.  They 
touch  on  many  phases  of  human  interest  and  duty,  in  some  respects 
taking  the  place  of  modern  municipal  regulations,  and  are  an  im- 
portant source  for  the  history  of  civilization  in  the  Middle  Ages. 
But  valuable  as  they  are  in  subject-matter,  their  chief  bearing  upon  our 
present  theme  lies  in  the  manner  of  their  enactment.  The  guilds 
applied  the  democratic  principle  in  their  legislation.  Thus  the  ordi- 
nance of  one  of  the  guilds  of  Cambridge,  adopted  in  1431,  recited  :  — 

"These  ben  ye  ordynauncis  and  statutys  of  ye  Gylde  of  ye  saide  seynt  Clem- 
ent, which  is  holden  in  ye  chirche  of  ye  same  seynt  Clement  in  Cambrigge, 
made  be  ye  comoun  assent  of  all  ye  bretheren  of  ye  forseyd  gylde."  3 

1  "Early  History  of  Institutions"  (New  York,  1875),  232,  233. 

2  The  guilds  here  referred  to  are  the  craft-guilds  which  were  "  unions  of  artisans 
for  purely  economic  purposes,"  and  which,  though  "primarily  intended  as  an  organiza- 
tion of  the  independent  middle  class,  .  .  .  were  useful  adjuncts  in  upholding  indus- 
trial order,  and,  on  the  whole,  did  not  prove  untrue  to  their  task  as  organs  for  the  trans- 
mission of    skill    and  probity  from   generation  to  generation." — Seligman,  "Two 
Chapters  on  the  Mediaeval  Guilds  of  England,"  Publications  of  American  Economic 
Association,  II,  465,  479. 

They  are  to  be  distinguished  from  the  religious  guilds,  which  were  associations 
of  the  clergy;  social  guilds,  whose  objects  were  convivial  and  the  rendering  of  mutual 
aid;  the  frith  guilds,  organized  for  common  protection  and  the  punishment  of  law- 
breakers ;  the  merchant  guilds,  consisting  of  all  the  traders  whose  business  lay  in  the 
town  and  whose  ends  were  "in  substance  a  monopoly  of  retail  trade,  and  an  exemption 
from  all  petty  burdens  throughout  the  kingdom."  —  Seligman,  390,  391,  409.  Cf. 
Gross,  "The  Gild  Merchant"  (Oxford,  1890,  I,  Chap.  Ill);  Hibbert,  "Influence  and 
Development  of  English  Gilds"  (Cambridge,  1891),  14  et  seq. 

3  Toulmin  Smith,  "English  Gilds"  (London,  1870),  274. 


SURVIVALS   OF   POPULAR   LAW-MAKING  21 

Those  of  Exeter  declare :  — 

"Thes  beth  the  Ordenaunce  made  and  astabled  of  the  ffraternyte  of  crafte 
of  Taylorys,  of  the  Cyte  of  Exceter,  by  asente  and  consente  of  the  ffraternyte  of 
crafte  afforesayd  y-gedered  there  to-gedere,  ffor  ever  more  to  yndewre."  l 

A  guild  of  Lynn  established  in  1376  declared :  — 

"Theis  ordennauns  were  ordeyned  be  on  assent  of  alle  the  bretheryn  and 
sisteryn  of  this  gild,  to  meyntene  and  fulnllyn  theis  forn  statu.' ' 2 

At  North  Lenne  the  recital  was :  — 

"Yeis  arn  ye  ordynnaunces  of  our  Gylde,  ordeyndbe  alle  the  hoi  fraternite."  3 

The  preamble  to  the  ordinances  of  a  Stratford  guild  was :  — 

"These  are  the  ordinances  of  the  brethren  and  sisteren  of  the  Gild  of  the 
Holy  Cross  of  Stratford."  4 

Following  are  other  titles :  — 

"The  Ordinances  of  the  bretheren  and  sisteren  of  the  Gild."  5 
"Statutes  of  the  Guild,  ordained  by  the  pleasure  of  the  Burgesses."1 

An  ordinance  of  the  Tailor's  Guild  of  Exeter  closes  thus :  — 

"And  here  volowyth  te  namys  off  them  ht  dyd  a-sentt  to  thys  ordynans,  before 
and  in  he  xxiijd  day  of  June,  in  the  yere  above  said."  7  The  names  and  occupa- 
tions of  the  signers  follow. 

Several  of  the  ordinances  contain  this  provision:  — 

"Also,  tat  ter  schal  non  of  te  wardeyns  make  none  newe  statutes  ne  newe 
ordinances  wtoute  assente  of  alle  te  bretherhede,  and  tat  it  be  done  on  te  day  of 
here  assemble."  8 

Another  clause  common  to  many  ordinances  is  one  requiring 
them  to  be  read  over  and  assented  to  by  newly  admitted  members.9 

Hibbert,10  commenting  on  this  phase  of  guild  life,  observes :  — 

Toulmin  Smith,  "  English  Gilds  "  (London,  1870),  312. 

Id.  48. 

Id.  103. 

Id.  215. 

Guild  at  Coventry,  Id.  228. 

At  Berwick-upon-Tweed,  Id.  338. 

7  Id.  329- 

8  Ordinances  of  Guild  of  St.  Katherine  and  of  Guild  of  Sts.  Fabian  and  Sebas- 
tian, London,  Id.  8,  u. 

9  Id.  159,  161,  72,  88. 

10  "Influence  and  Development  of  English  Guilds"  (Cambridge,  1891),  48,  49. 


22  THE   PEOPLE'S   LAW 

"The  education  obtained  by  the  framing  of  their  own  ordinances  was  also 
no  slight  gain  to  the  townsmen.  They  provided  for  their  peculiar  needs  in  their 
own  peculiar  way,  not  always  we  may  say  in  the  best  way,  but  in  that  which  they, 
who  knew  the  special  requirements  of  the  case,  considered  the  best.  Each  who 
took  part  in  drawing  up  those  regulations  would  feel  that  a  certain  share  of  respon- 
sibility rested  with  him  to  see  that  they  were  kept.  The  constitutional  impor- 
tance also  of  this  training,  in  imparting  an  appreciation  of  the  responsibilities  and 
duties  which  devolve  on  those  who  frame  regulations,  was  not  unimportant." 


CHAPTER  III 
THE  CHURCH  COVENANT 

The  Anabaptists  and  their  "Bund" 

"  THAT  department  of  modern  political  thought  which  may  be 
broadly  called  democratic,"  says  a  recent  writer,1  "  takes  its  rise  in 
the  sixteenth  century." 
Another  adds :  — 

"Modern  democracy  is  the  child  of  the  Reformation.  ...  To  make  the 
religious  revolution  lawful,  it  was  necessary  to  proclaim  these  two  principles  [free 
inquiry  and  the  priesthood  of  all  believers]  which  contained  in  them  the  germs 
of  the  political  revolution.' ' 2 

But  it  may  well  be  asked  if  the  freedom  and  equality  here  referred 
to  were  not  the  underlying  and  fundamental  ideas  of  the  folkmoot  ? 
Moreover,  it  is  not  at  all  certain  that  the  expression  of  these  principles 
in  the  form  now  about  to  be  discussed  —  the  church  covenant  or 
"bund" — did  not  actually  antedate  the  Reformation.3  Finally,  if 
modern  democracy,  as  a  political  fact,  be  exclusively  "the  child  of 
the  Reformation,"  why  did  it  not  generally  accompany  that  move- 
ment? Why,  in  other  words,  did  not  democracy  begin  with  Luther 
in  Germany?  or,  better  still,  with  Wyclif  in  England  or  Huss  in 
Bohemia  ?  Why  did  it  wait  until,  as  Dr.  Borgeaud  himself  so  skil- 
fully shows,  the  Reformation  reached  a  country  where  democratic 
institutions  had  never  disappeared,  but  were  maintained  in  their 
pristine  vigor  from  primitive  times  ?  It  would  seem  to  be  more  correct 

/  1  Gooch,  "History  of  Democratic  Ideas  in  the  Seventeenth  Century,"  i.  Cf. 
Osgood,  "The  Political  Ideas  of  the  Puritans,"  Political  Science  Quarterly  (1891), 
VI,  229. 

2  Borgeaud,  "  Rise  of  Modern  Democracy  in  Old  and  New  England,"  2,  3. 

3  "  The  Church  covenant  idea  may  even  have  been  made  use  of  among  the  vari- 
ous Christian  brotherhoods,  of  which,  in  the  century  preceding  the  Reformation,  and 
even    farther   back,    we    find    many   traces."  — Burrage,    "The   Church  Covenant 
Idea,"  13. 

23 


24  THE  PEOPLE'S   LAW 

to  treat  this  phenomenon  of  the  sixteenth  century  as  a  revival  than 
as  a  birth,  considering  it  quite  as  much  a  product  of  soil  and  condi- 
tions as  of  the  forces  acting  upon  them. 

It  is  natural,  however,  that  in  times  of  sectarian  strife  and  per- 
secution members  of  the  weaker  sect  should  seek  to  give  formal 
expression  to  the  closer  union  which  results  from  the  sense  of  com- 
mon danger  and  interdependence.  In  the  days  of  Trajan  the  Chris- 
tians "bound  themselves  by  an  oath  at  their  meetings."1  At  the 
period  of  the  Reformation,  this  notion  assumes  the  form  of  the 
"bund"  or  covenant.  This  was  not  a  mere  announcement  of  theo- 
logical dogmas ;  it  was  rather  a  declaration  of  the  ties  which  bound 
together  the  members  of  the  sect  and  an  agreement  on  their  part 
to  pursue  a  certain  course  of  conduct.2  A  typical  instance  of  this 
occurs  within  a  decade  after  Luther  formally  launched  the  Reforma- 
tion by  nailing  his  famous  theses  on  the  church  door  at  Wittenberg. 
The  Wiedertaufer  (Anabaptists)  of  Schlatten  am  Randen  put  forth 
an  instrument  entitled  the  "Seven  Articles  .  .  .  Agreed  to  on  Feb- 
ruary 4,  1527."  All  but  two  of  the  articles  are  introduced  by  the 
phrase  " seint  wir  vereinigt  wordten"  (we  are  become  united),  and 
the  fourth,  which  is  especially  significant,  is  as  follows : 3  — 

"Zum  vierden:  Seint  wir  vereignigt  worden  von  der  absinderung  von  dem 
bosen  vnd  vom  argen,  das  der  teuffl  in  der  welt  gepflanzt  hat,  also  das  wir  nit 
gemainschafft  mit  inen  haben,  vnd  mit  inen  (nit)  laufen  in  die  gemenge  irer 
greiil.  —  Nun  ist  vns  auch  das  gebot  des  herren  offenbar,  in  welchem  er  vns  haist 
abgesindert  sein,  wellen  wir  seine  siine  vnd  tochter  sein;  weiter  vermant  er  vns 
darumb :  von  babilon  vnd  dem  Irdischen  Egipto  aus  zu  geen,  das  wir  nicht  thail- 
hafftig  werden  irer  qual  vnd  leiden,  so  der  herr  iiber  sie  fueren  wirt.  Dis  grauel, 
welche  wir  meiden  sollen  —  in  den  werden  vermaint  alle  babstliche  vnd  widerbabst- 
liche  werckh  vnd  gotes  dienste,  versamlung,  kiirchgang,  .  .  .  vnd  andere  mer 
dergleichen,  die  dan  die  welt  fur  hoch  belt; —  von  diesem  allem  sollen  wir  abge- 
sindert werden,  vnd  kain  tail  mit  solchem  haben,  denn  es  sein  eitel  grauel,  die 
vns  verhasst  machen  vor  vnserem  Christo  Jesu,  welcher  vns  entledigt  hat  von  der 
dienstbarkeit  des  fleisches." 

1  Letter  of  Pliny  the  Younger  ("  C.  Plinii  Caecelii   Secundi  Epistolarum  Libri 
Decem  et  Panegyricus  "  (Parisiis,  1823),  Epistola  XCVII,  199,  200. 

2  Dr.  Crooker  in  his  monograph  on  "The  Unitarian  Church,"  15,  aptly  charac- 
terizes the  covenant  as  afterward  developed  among  the  American  churches  as  "the 
declaration  of  a  spiritual  purpose  or  a  life  promise  ...  not  a  creed,  —  a  set  of  beliefs, 
—  but  a  statement  of  religious  motives." 

3  Quoted  from  Burrage,  "The  Church  Covenant  Idea,"   16,   17.     An  abridged 
text  of  the  articles  is  given  in  Beck,  "Die  Geschichts-Bucher  der  Wiedertaufer  in  Oester- 
reich-Ungarn"  (1883). 


THE   CHURCH    COVENANT  25 

["In  the  fourth  place:  We  have  agreed  [have  covenanted]  concerning  sepa- 
ration from  evil  and  wickedness,  which  the  devil  has  planted  in  the  world,  namely 
that  we  will  not  have  association  with  them,  and  will  [not]  walk  with  them  in 
their  many  abominations.  Now  also  to  us  is  the  command  of  the  Lord  manifest, 
in  which  he  calls  us  to  be  separated  [from  the  world],  if  we  wish  to  be  his  sons 
and  daughters;  further  he  warns  us  therefore:  to  flee  from  Babylon  and  the 
land  of  Egypt,  that  we  share  not  their  torments  and  sorrows,  which  the  Lord 
will  bring  upon  them.  The  abominations,  which  we  shall  avoid  by  which  are 
meant  all  papal  and  anti-papal  work  and  church  services,  gathering[s],  church- 
way[s],  .  .  .  and  still  other  of  the  like,  which  the  world  now  holds  in  high  esteem ; 
from  all  this  shall  we  be  separated,  and  have  no  part  with  such,  for  they  are  empty 
abominations,  which  make  us  hateful  before  our  Christ  Jesus,  who  has  released 
us  from  the  bondage  of  the  flesh."] 

We  have  here,  then,  the  church  covenant  in  its  crudest  and  most 
primitive  form.  Some  features  which  are  clearly  expressed  as  the 
instrument  comes  into  wider  use  are  here  only  implied.  Its  final 
characteristics  are  but  faintly  foreshadowed.  Enough  appears, 
however,  even  in  this  simple  document,  to  challenge  careful  atten- 
tion. It  was  an  agreement  among  equals;  not  something  imposed 
or  enjoined  upon  inferiors.  It  acquired  its  force  from  the  voluntary 
consent  of  the  members.  It  purports  to  bind  only  those  who  "have 
agreed"  and  consequently  it  becomes  effective  as  to  each  individual 
only  when  he  agrees.  Finally,  it  is  a  formal  written  compact  not 
only  evidencing  the  organic  union  of  its  adherents,  but  binding  them 
to  a  specified  mode  of  life. 

From  this  period  on  the  idea  of  the  church  "bund"  or  covenant 
becomes  common  and  instances  of  it  are  found  in  various  countries.1 
We  shall  encounter  it  often  in  these  pages,  and  we  shall  do  well  to 
watch  its  development,  follow  its  changing  character  and  widening 
scope,  study  its  application  to  civil  affairs,  and  trace  its  gradual 
transformation  into  a  political  instrument.  For  it  is  probable  that 
in  the  church  covenant  we  find  the  germ  of  the  popular  written  con- 
stitution as  it  has  been  evolved  in  America.  That  instrument,  it  is 
certain,  is  a  product  of  the  era  of  modern  democracy,  and  for  the 
beginnings  of  the  former  we  should  logically  look  to  the  time  and 
region  of  the  latter's  origin. 

1  Some  of  the  English  Calvinists  appear  to  have  borrowed  it  directly  from  the 
Anabaptists  (see  Burrage,  35,  42,  43) ;  others  probably  indirectly,  by  way  of  Geneva. 


CHAPTER  IV 
SWITZERLAND  AND  THE  REFORMERS 

FROM  Germany  the  Anabaptist  movement  spread1  to  the  one 
country  of  Europe  where  the  folkmoot  has  maintained  its  pristine 
character  and  exercised  the  functions  of  a  law-making  body  almost 
continuously  until  the  present  hour. 

There  is  a  record  of  a  folkmoot,  under  the  name  of  Landsge- 
meinde,  held  in  the  canton  of  Schwyz  in  1294,  within  three  years  after 
the  formation  of  the  league  which  marks  the  beginning  of  the  modern 
Switzerland.2  And  this  was  no  solitary  instance;  the  record  dis- 
closes that  the  Landsgemeinde  was  then  an  established  institution.3 
In  Uri,  matters  relating  to  the  pasturage  had  long  been  regulated  by 
such  an  assemblage.4  All  through  the  intervening  centuries  the  Swiss 
folkmoot,  in  one  form  or  another,  has  continued.  In  some  of  the 
cantons  it  is  still  the  sole  legislative  body ; 5  in  others  representative 
legislatures  have  been  constituted,  but  the  principle  of  the  folkmoot 
has  been  preserved  even  there.  All  proposed  changes  in  either 
federal  or  cantonal  constitutions  must  be  submitted  to  the  people, 
and  in  all  save  one  of  the  cantons  the  referendum  may  be  compelled.6 
Thus  to-day,  after  having  preserved  this  venerable  institution  through 
ages  of  political  change  and  social  upheaval,  during  which  it  has 
elsewhere  mostly  disappeared,  the  Alpine  Republic  is  giving  it  new 
life  and  expanded  scope,  and  offering  it  as  a  model  to  the  statesmen 
of  other  lands. 

1  Burrage,  "The  Church  Covenant  Idea,"  13. 

2  Blumer,  "Staats  und  Rechtsgeschichte  der  Schweizerischen  Demokratien,"  I, 
135;   Richman,  "Appenzell,"  145. 

3  Deploige,  "The  Referendum  in  Switzerland,"  4,  note. 

4  Id. 

5  Id.,  Introduction,  xix.     See  Mr.  Freeman's  classical  description  of  the  Lands- 
gemeinde in  Uri  and  Appenzell,  "Growth  of  the  English  Constitution,"  Chap.  I.     Cf. 
Richman,  "Appenzell,"  Chap.  VII;  Adams  and  Cunningham,  "The  Swiss  Confedera- 
tion," 117  et  seq.;  Winchester,  "The  Swiss  Republic,"  Chap.  VII. 

8  Deploige,  "The  Referendum  in  Switzerland,"  Introduction,  xvi. 

26 


SWITZERLAND   AND   THE   REFORMERS  2/ 

Let  us  endeavor  to  ascertain  how  this  remarkable  preservation  or 
revival  was  achieved. 

A.    The  Environment  and  the  Background 

In  the  Franco-Swiss  frontier  city  of  Geneva  the  folkmoot  assumed 
the  form  of  the  conseil  general,  or  primary  assembly  of  the  citizens,  of 
which  there  are  records  reaching  as  far  back  as  I409.1  This  body 
" elected  syndics  and  acted  upon  treaties."2  In  1528  it  signalized 
Genevese  independence  of  Savoy  by  rejecting  the  mdomne  (bishop's 
temporal  deputy)  nominated  by  the  duke,3  and  in  1534  it  took  action 
denying  the  right  of  pardon  claimed  by  the  prince  bishop  himself.4 
A  year  later  it  was  this  conseil  general  which  gave  the  final  and  effective 
approval  to  the  measures  by  which  the  Catholic  religion  was  formally 
deposed  in  Geneva,5  and  in  1536,  upon  the  recommendation  of  the 
lesser  council,  which  constituted  the  city's  administrative  body,  this 
primary  assembly  met  to  consider  the  formal  adoption  of  the  Refor- 
mation. The  record  of  this  meeting  is  most  instructive. 

"By  the  voice  of  M.  Claude  Savoy,"  it  recites,  "were  proposed  the  resolu- 
tions of  the  conseil  ordinaire  and  of  the  Council  of  Two  Hundred,  touching  the 
manner  of  living.  .  .  .  Whereupon,  without  any  dissenting  voice,  it  was  gen- 
erally voted,  and  with  hands  raised  in  air  resolved  and  promised  and  sworn 
before  God,  that  we  all  by  the  aid  of  God  wish  to  live  (volons  vivre)  in  the  holy 
evangelical  law  and  Word  of  God,  as  it  has  been  announced  to  us,  desiring  to 
abandon  all  masses,  images,  idols,  and  all  that  which  may  pertain  thereto,  to 
live  in  union  and  obedience  to  justice.  .  .  .  Also  voted  to  try  to  secure  (mourrir 
et  enseigner)  a  competent  man  for  the  school,  with  sufficient  salary  to  enable  him 
to  maintain  and  teach  the  poor  free;  and  that  every  one  be  bound  to  send  his 
children  to  the  school  and  have  them  learn. " 6 

Dr.  Borgeaud,  writing  in  1890,  predicted : — 

"If  ever  the  Registers  of  the  Council  of  Geneva  should  be  published,  the 
amount  of  knowledge  to  be  gained  from  a  comparison  between  them  and  the 
Records  of  Massachusetts  would  be  most  striking."  7 

Rivoire,  "Registres  du  Conseil  Geneve"  (Geneva,  1900),  I,  2-6. 

Foster,  "Geneva  before  Calvin,"  American  Historical  Review,  VIII,  220. 

Roget,  "Les  Suisses  et  Geneve  ou  1' Emancipation  de  la  Communaute  Genevoie 
au  1 6  Siecle  "  (1864),  I,  298  et  seq. 

Id.  II,  76. 

Id.  II,  191,  quoting  "Registres  du  Conseil,"  XXVIII,  fol.  152,  153. 

"Registres  du  Conseil,"  XXIX,  fol.  112,  May  21,  1536.  The  translation  is  that 
of  H.  D.  Foster,  American  Historical  Review,  VIII,  235. 

"The  Rise  of  Modern  Democracy  in  Old  and  New  England"  (London,  1894), 


28  THE   PEOPLE'S   LAW 

The  " Registers"  have  at  last  been  published,  at  least  in  part, 
and  in  the  portion  just  quoted  we  have  a  remarkable  fulfilment  of 
this  prediction.  This  account  of  the  session  of  1536  reads  like  the 
record  of  a  New  England  town  meeting  of  the  succeeding  century. 
There  is  the  same  submission  of  proposals  to  the  entire  body,  the 
same  voting  by  show  of  hands,  the  same  religious  cast  to  the  pro- 
ceedings, which  we  shall  find  to  characterize  the  Puritan  assemblies 
in  the  new  world.  Even  the  subjects  of  their  deliberations  are  curi- 
ously identical.  A  Massachusetts  town  meeting  of  1639  is  declared 
to  have  established  "the  first  school  in  the  world  supported  by  direct 
taxation."  l  But  here  was  an  assembly  more  than  a  century  earlier, 
which  provided  not  only  for  free  public  schools,  but  also  for  com- 
pulsory attendance ! 

Most  significant  of  all,  however,  is  the  character  of  the  institution 
itself.  The  Genevese,  in  the  course  of  their  civic  evolution,  had 
developed  a  system  which  approached  closely  to  the  machinery  of 
modern  constitution-making.  While  the  lesser  councils  determined 
minor  matters  independently,  important  measures  were  finally  passed 
on  by  the  primary  assembly  of  citizens.  But  these  were  formulated 
as  proposals  by  one  of  the  councils,  which  thus  foreshadowed  the 
modern  convention  in  framing  and  submitting  constitutions,  just  as 
the  primary  assembly,  or  conseil  general,  stands  as  the  prototype  of 
the  modern  electorate  in  passing  upon,  and  giving  validity  to,  the 
convention's  work. 

B.   Calvin 

Three  months  after  the  historic  meeting  whose  record  we  have 
just  considered,  there  came  to  Geneva  one  who  was  destined  to 
exert  a  profound  influence  upon  the  civil  and  religious  development 
not  alone  of  that  community  but  also  of  Europe  and  even  of  America. 
John  Calvin  was  then  in  his  twenty-eighth  year.  Born  in  France 
and  educated  for  the  priesthood,  he  had  been  trained  in  the  civil 

153,  note;  first  published  in  Annales  de  VEcole  Libre  des  Sciences  Politiques,  1890-1891. 
Cf .  Pattison,  "Essays:  Calvin  at  Geneva  "  II,  36:  "What  is  above  all  wanted  is  the 
publication,  in  their  integrity,  of  the  Registers  of  the  Councils  and  the  Consistory." 
1  Joseph  White,  Massachusetts  Superintendent  of  Publication  Instruction,  quoted 
by  Mowry,  "The  First  American  Public  School,"  Education,  XXI,  537.  The  town 
meeting  referred  to  was  at  Dorchester.  See  its  Town  Records,  54-56,  136,  137. 


SWITZERLAND   AND   THE   REFORMERS  29 

law,1  and  that  fact  had  a  most  important  bearing  upon  his  work  and 
influence.  Shortly  before  coming  to  Geneva  he  had  published  the 
first  edition  of  his  " Institution  of  the  Christian  Religion,"2  in  which, 
as  subsequently  amplified,  he  set  forth  not  only  his  theological  system, 
but  also  his  views  on  church  polity  and  even  of  civil  government.3 
The  work  is  divided  into  four  books,  the  fourth  being  entitled :  "Of 
the  manner  or  helps  whereby  God  calleth  us  into  the  fellowship  of 
Christ,  and  holdeth  us  in  it,"  and  is  devoted  largely  to  church  gov- 
ernment and  administration.  In  the  third  chapter  of  this  book  the 
author  treats  "of  the  teachers  and  ministers  of  the  church  and  of 
their  election  and  office,"  and  here  occurs  the  following  passage,4 
which  well  illustrates  the  basic  theory  of  the  Calvinistic  system :  — 

"Now  it  is  demanded  whether  the  minister  ought  to  be  chosen  of  the  whole 
church  or  only  of  the  other  of  the  same  office,  and  of  the  elders  that  have  rule  of 
discipline,  or  whether  he  may  be  made  by  the  authority  of  one  man.  They  that 
give  this  authority  to  one  man  allege  that  which  Paul  saith  to  Titus,  'Therefore 
I  have  left  thee  in  Crete  that  thou  shouldst  appoint  in  every  town  priests'  (Titus 
i.  5).  Again  to  Timothy,  'Lay  not  hands  quickly  upon  any  man  '  (i  Tim.  v.  22). 
But  they  are  deceived  if  they  think  that  either  Timothy  at  Ephesus  or  Titus  in 
Crete  held  a  kingly  power  that  either  of  them  should  dispose  all  things  at  his  own 
will.  For  they  were  above  the  rest  only  to  go  before  the  people  with  good  and 
wholesome  counsels;  not  that  they  only,  excluding  all  others,  should  do  what 
they  listed.  And  that  I  may  not  seem  to  feign  anything  I  will  make  it  plain  by 
a  like  example.  For  Luke  rehearseth  that  Paul  and  Barnabas  appointed  priests 
in  divers  churches;  but  he  also  expresseth  the  order  or  manner  how,  when  he 
says  that  it  was  done  by  voices  ordaining  priests  (saith  he)  by  lifting  up  of  hands 
in  every  church.  Therefore  they  two  did  create  them;  but  the  whole  multitude 
as  the  Grecians'  manner  was  in  elections,  did,  by  holding  up  their  hands,  declare, 
whom  they  would  have.  Even  in  like  manner  the  Roman  histories  do  sometimes 
say  that  the  consul  which  kept  the  assemblies  created  new  officers  for  none  other 
cause  but  for  that  he  received  the  voices  and  governed  the  people  in  the  election. 
Truly  it  is  not  likely  that  Paul  granted  more  to  Timothy  and  Titus  than  he  took 

1  His  father  was  a  notary  in  the  ecclesiastical  court  of  Noyon,  Picardy,  Calvin's 
native  town,  and  the  son  was  sent  first  to  the  University  of  Orleans  "to  study  juris- 
prudence under  Pierre  de  PEtoile  .  .  .  reputed  the  acutest  lawyer  in  France"  and 
afterward  "to  complete  his  legal  studies  at  the  University  of  Bourges,  the  most  renowned 
school  in  France  for  that  branch  of  science,  where  it  was  taught  by  Andre  Alciat,  a 
famous  Italian  jurisconsult."  — Dyer,  "Life  of  Calvin"  (London,  1850),  7-9. 

2  It  "is  dated  at  Basle  in  1536,  but  no  edition  of  that  year  is  now  extant.     It  is 
probable  that  the  work  first  appeared  in  French;    but  the  oldest  edition  known  is  a 
Latin  one,  bearing  the  date  of  1536,  probably  a  translation."  —  Id.  34. 

3  Chapter  XX  of  the  Fourth  Book  is  entitled  "Of  Civile  Government." 

4  Quotation  is  here  made  from  the  English  translation  of  1561  (London,  Wolfe 
and  Hanson).     The  spelling  is  modernized. 


30  THE   PEOPLE'S   LAW 

to  himself.  But  we  see  that  he  was  wont  to  create  bishops  by  voices  of  the  people. 
Therefore  the  places  above  are  to  be  understood  that  they  diminished  nothing 
of  the  common  right  and  liberty  of  the  church.  Therefore  Cyprian  saith  well 
when  he  affirmeth  that  it  cometh  from  the  authority  of  God  that  the  priest  should 
be  chosen  in  [the]  presence  of  the  people,  before  the  eyes  of  all  men  and  should 
by  public  judgment  and  testimony  be  allowed  for  worthy  and  meet.  For  we 
see  that  this  was,  by  the  commandment  of  the  Lord,  observed  in  the  Levitical 
priests  that  before  their  consecration  they  should  be  brought  into  the  sight  of  the 
people.  And  no  otherwise  is  Matthias  added  to  the  fellowship  of  the  apostles; 
and  no  otherwise  the  seven  deaconesses  were  created,  but  the  people  seeing  and 
allowing  it.  These  examples  (saith  Cyprian)  do  show  that  the  ordering  of  a 
priest  ought  not  to  be  done  but  in  the  knowledge  of  the  people  standing  by,  that 
the  ordering  may  be  just  and  lawful  which  hath  been  examined  by  the  witness 
of  all.  We  are  therefore  come  thus  far,  that  this  is  by  the  word  of  God  a  lawful 
calling  of  a  minister,  when  they  that  seem  meet  are  created  by  the  consent  and 
allowance  of  the  people." 

The  idea  of  the  independence  of  the  congregation  was  not  new  in 
Switzerland.  It  had  been  preached  during  the  generation  preceding 
Calvin  by  the  Swiss  reformer  Zwingli,1  who  also  appealed  to  the 
Bible  as  the  sole  source  of  authority.2  But  the  doctrine  of  "common 
assent" — the  idea  that  the  individuals  of  the  congregation  must  be 
consulted  and  their  consent  obtained  in  important  matters  of  church 
government,  such  as  the  selection  of  officers,  — though  foreshadowed 
and  applied  in  folkmoot  and  church  covenant  —  appears  to  have  been 
first  clearly  enunciated,  in  modern  times,  here  in  Calvin's  "Institu- 
tion." 3  It  will  be  seen,  too,  that  he  not  only  lays  down  the  doctrine 
but  supports  it  by  reasoning  and  precedent,  appealing  not  alone  to 

1  "The  conception  of  the  Congregation  as  the  unit  of  ecclesiastical  government 
seems  to  have  been  first  definitely  formulated  as  a  system  by  Zwingle.     'Hong  and 
Kussnacht  is  a  truer  church  than  all  the  bishops  and  popes  together/  was  the  formal 
declaration  of  his  ecclesiastical  theory." — Doyle,   "English  Colonies  in  America" 
(New  York,  1889),  II,  7. 

2  Dyer,  "Life  of  Calvin,"  2. 

3  "What  was  really  original  in  this  work,  was  Calvin's  doctrine  of  the  organization 
of  the  Church  and  of  its  relation  to  the  State.     The  base  of  the  Christian  republic  was 
with  him  the  Christian  man,  elected  and  called  of  God,  preserved  by  his  grace  from 
the  power  of  sin,  predestinate  to  eternal  life.     Every  such  Christian  man  is  in  himself 
a  priest,  and  every  group  of  such  men  is  a  Church,  self-governing,  independent  of  all 
save  God,  supreme  in  its  authority  over  all  matters,  ecclesiastical  and  spiritual.     The 
constitution  of  such  a  church,  where  each  member  as  a  Christian  was  equal  before 
God,  necessarily  took  a  democratic  form.     In  Calvin's  theory  of  Church  government 
it  is  the  Church  which  itself  elects  its  lay  elders  and  lay  deacons  for  purposes  of  ad- 
ministration ;  it  is  with  the  approval  and  consent  of  the  Church  that  elders  and  deacons 
with  the  existing  body  of  pastors  elect  new  ministers."  —  Green,  "History  of  the  Eng- 
lish People"  (New  York,  1879),  II,  279. 


SWITZERLAND   AND   THE   REFORMERS  31 

the  Old  and  New  Testaments,  but  also,  as  Rousseau  did  after  him, 
to  the  democratic  models  of  the  classical  nations.  He  might  with 
propriety  have  appealed  also  to  the  institutions  of  his  adopted  coun- 
try.1 For  what,  after  all,  is  his  doctrine  of  common  assent  but  the 
principle  upon  which  the  Swiss  had  been  legislating  and  electing 
their  magistrates  for  almost  countless  generations?  upon  which, 
indeed,  the  city  state  of  Geneva  was  still  to  a  great  extent  conducted  ? 

But  if  Calvin  failed  to  mention  the  popular  assembly  of  Switzer- 
land in  his  famous  work,  he  did  not  fail  to  recognize  and  retain  it  in 
his  politico-ecclesiastical  system.  For  the  author  of  the  "  Institu- 
tion" did  more  than  merely  write  a  book  or  found  a  school  of  the- 
ology :  he  was  a  civil  administrator  as  well.  For  nearly  a  quarter  of 
a  century  he  directed  the  affairs  of  state  in  Geneva,  framed  laws  for 
the  community,  and  utilized  the  institutions  whose  course  of  develop- 
ment we  have  already  followed.  Just  as  we  shall  find  the  English 
Puritans  copying  and  preserving  the  forms  and  practices  of  the 
ancient  guilds,  so  the  Genevese  reformer  maintained  and  used  the 
civic  framework  which  had  been  built  up  before  his  time.  "In  the 
city  of  Calvin,"  says  Borgeaud,2  "the  Small  Council,  the  Council  of 
Sixty,  and  the  Council  of  Two  Hundred  ruled  and  made  the  laws; 
the  General  Council  of  citizens  elected  the  magistrates  pro  forma  and 
approved  the  laws  when  made" 

On  the  ecclesiastical  side  of  the  government,  although  the  "Vener- 
able Company"  of  ministers  nominated  the  candidates  for  ordina- 
tion and  for  vacant  pastorates,  yet  these  were  subject  to  the  approval 
of  the  lay  members,  who  were  given  eight  days  to  present  objections.3 

A  striking  illustration  of  the  manner  in  which  Calvin  preserved 
the  old  Teutonic  idea  of  the  popular  approval  of  laws  is  found  in  the 
adoption  of  the  Ordinnances  Ecclesiastiques  de  VEglise  de  Geneve.  On 
the  day  of  his  return  from  exile,  in  1541,  Calvin  went  before  the 
Council  and  demanded  the  establishment  of  a  disciplinary  code.  A 

1  The  omission  was  doubtless  due  to  his  unfamiliarity  with  Swiss  institutions  when 
the  work  was  first  written. 

"Rise  of  Modern  Democracy  in  Old  and  New  England"  (London,  1894),  153. 

3  Pattison,  "Essays:  Calvin  at  Geneva,"  II,  24.  Cf.  Borgeaud,  "Rise  of  Modern 
Democracy"  (London,  1894),  5. 

"Despotic  as  the  authority  of  pastor  and  elders  seemed,  pastor  and  elders  were 
alike  the  creation  of  the  whole  congregation  and  their  judgment  could,  in  the  last  resort, 
be  adopted  or  set  aside  by  it."  —  Green,  "History  of  the  English  People"  (London, 
New  York,  1879),  II,  280. 


32  THE   PEOPLE'S   LAW 

committee  was  at  once  appointed  to  draft  such  an  instrument,  and 
the  ideas  of  Calvin's  "Institution"  were  accordingly  reduced  to  the 
form  of  laws.  The  subsequent  proceedings  have  been  described  as 
follows :  — 

"The  regulations,  some  two  hundred  articles  in  all,  were  published,  and 
for  some  weeks  the  people  had  the  opportunity  of  considering  them,  and  talking 
them  over  in  their  family  circles.  On  November  2oth,  a  solemn  Council-General 
(Conseil  General]  was  convoked  in  St.  Peter's  Church.  Each  article  was  read 
and  put  to  the  vote  separately.  Before  they  quitted  the  church  a  whole  people, 
between  two  and  three  thousand  free  and  independent  citizens,  had  voluntarily 
engaged  to  observe  the  whole  circle  of  moral  duties  in  this  rigorous  form:  to 
attend  divine  service  regularly,  to  bring  up  their  children  'in  the  fear  of  the  Lord,' 
to  renounce  not  only  sensual  indulgences,  but  nearly  every  form  of  amusement, 
to  adopt  the  severest  simplicity  in  their  dress,  the  strictest  frugality  and  order  in 
their  abodes.  Nor  were  these  vain  promises.  The  Ordinances  were  not  only 
accepted;  they  were  carried  out  in  the  letter  and  the  spirit."  * 

These  " Ordinannces"  have  been  called  "an  ecclesiastical  constitu- 
tion," 2  but  they  were  really  much  more,  for  they  extend  far  into  the 
field  of  what  would  now  be  considered  secular  legislation.  In  their 
substance  they  strongly  and  significantly  resemble  the  church  cove- 
nants and  town  compacts  of  Puritan  New  England;  in  mode  of 
adoption  they  foreshadow  the  American  constitutions.  Every  step 
in  modern  constitution-making  —  the  framing,  the  submission,  the 
publication  and  discussion,  the  ratification  and  observance  —  is  care- 
fully taken. 

On  the  day  following  this  act  of  popular  approval,  Calvin  was 
appointed  to  prepare,  in  connection  with  three  others,  a  code  of 
secular  law.3  He  seems  to  have  devoted  nearly  a  year  to  the  task, 
and  the  effect  of  his  legal  training  is  apparent.  The  code  is  par- 
ticularly distinguished  for  its  minuteness  in  matters  of  police  regula- 
tion and,  after  its  adoption  in  1543,  it  remained  in  force  for  a  quarter 
of  a  century.4 

The  system  of  government  maintained  by  Calvin  was  not,  it  is 
true,  a  pure  democracy.  It  has  even  been  called  "an  aristocracy 
tempered  by  the  legal  sovereignty  of  the  community."  5  But,  as 
has  been  elsewhere  truly  said,  "aristocratic  tendencies  in  Geneva 

1  Pattison,  "Essays"  (Oxford,  1889),  II,  26,  27. 

2  Id.  22. 

3  "Registres  du  Conseil,"  15  May,  1542. 

4  Dyer,  "Life  of  Calvin"  (London,  1850),  149,  150. 

6  Borgeaud,  "Rise  of  Modern  Democracy,"  153-155. 


SWITZERLAND   AND   THE   REFORMERS  33 

appear,  not  with  Calvin,  but  during  the  three  generations  preceding 
his  arrival."  *  Whatever  autocratic  features  appear  in  his  adminis- 
tration, and  these  were  not  few,  were  more  than  offset  by  the  demo- 
cratic ideas  which  he  formulated  and,  perhaps  unconsciously,  in- 
stilled. It  is  no  paradox,  much  as  it  may  seem  so,  that  the  Calvinists 
of  Geneva  have  just  erected  an  expiatory  monument 2  to  Servetus 
on  the  spot  where  that  unfortunate  radical  was  burned  at  the  stake, 
by  command  of  the  reformer,  three  and  a  half  centuries  ago,  nor 
that  the  Genevese,  only  last  year,  effected  through  their  referendum 
a  complete  separation  of  church  and  state. 

Scarcely  less  significant  is  the  erection  at  Geneva,  under  the 
auspices  of  an  international  committee,  of  a  monument  to  com- 
memorate the  approaching  four  hundredth  anniversary  of  the  re- 
former's birth.3  All  peoples,  and  particularly  the  Anglo-American, 
have  been  affected  by  the  political  ideas  to  which,  consciously  or  not, 
he  gave  currency. 

"That  commanding  figure,  of  such  vast  power,"  says  Morley,4  "yet  some- 
how with  so  little  lustre,  by  his  unbending  will,  his  pride,  his  severity,  his  French 
spirit  of  system,  his  gift  for  government,  for  legislation,  for  dialectic  in  every 
field,  his  incomparable  industry  and  persistence,  had  conquered  a  more  than 
pontifical  ascendency  in  the  Protestant  world.  He  meets  us  in  England,  as  in 
Scotland,  Holland,  France,  Switzerland,  and  the  rising  England  across  the 
Atlantic." 

And  one,  even  more  authoritative,  quotes,  with  apparent  approval, 
the  statement  that,  "the  American  government  and  constitution  are 
based  on  the  theology  of  Calvin  and  the  philosophy  of  Hobbes."  5 

C.    The  Refugees 

Had  Geneva  remained  isolated,  or  had  Calvin's  work  been  merely 
local  in  scope,  the  influence  of  the  Genevan  theocracy  might  have 

1  Foster,  "Geneva  before  Calvin,"  American  Historical  Review,  VIII,  221. 

2  See  The  Nation,  LXXVII,  322.     "The  placing  of  this  granite  block,"  it  is  there 
observed,  "is  the  outcome  of  the  agitation  of  Professor  Doumergue,  the  great  historian 
of  Calvin.     Beneath  the  record  of  the  historic  event  the  tablet  contains  the  following 
remarkable  words :  '  Fils  respectueux  et  reconnaissants  de  Calvin,  notre  grand  reforma- 
teur,  mais  condamnant  une  erreur  qui  fut  celle  de  son  siecle,  et  fermement  attaches 
a  la  liberte  de  conscience  selon  les  vrais  principes  de  la  Reformation,  nous  avons  eleve 
ce  monument  Expiatoire  le  27  Octobre,  1903.'" 

3  The  Nation,  LXXXIII,  460. 

4  "Oliver  Cromwell,"  47. 

6  Bryce,  "The  American  Commonwealth"  (Am.  Ed.,  1890),  I,  299. 


34  THE   PEOPLE'S   LAW 

been  temporary  and  unimportant.  But  the  Calvinistic  movement 
made  this  little  town  of  twelve  thousand  inhabitants  "the  centre  of 
the  Protestant  world."  *  From  all  over  western  Europe  came  ad- 
herents of  the  new  faith,2  who  found  in  Geneva  a  haven  of  refuge 
from  religious  persecution.  Here  they  were  not  merely  imbued  with 
Calvin's  theological  doctrines  —  they  saw  his  politico-ecclesiastical 
system  in  actual  operation  —  his  plan  of  church  government  in  which 
all  members  were  equal  and  all  officers  derived  their  authority  from 
the  consent  of  the  congregation  —  his  theocratic  state,  modelled  upon 
the  church,  in  which  the  ideas  of  the  old  Teutonic  folkmoot  were 
reproduced,  and  all  laws  rested,  at  least  theoretically,  on  the  approval 
of  the  citizens.  Those  who  came  by  1536  were  privileged  to  witness 
the  inspiring  spectacle  of  the  people  determining  the  state's  policy 
and  attitude  toward  the  Reformation.  Those  who  were  there  in 
1541  beheld  a  similar  scene  when  the  citizens  gave  their  assent  to 
the  "Ordinannces."  Object  lessons  like  these  could  hardly  fail  to 
impress  the  foreigner. 

Among  those  who  found  temporary  homes  at  Geneva  during  the 
latter  half  of  the  sixteenth  century  were  three  men  who,  more  than 
any  others,  influenced  the  course  of  the  Reformation  in  Great  Britain, 
and  ultimately  the  trend  of  religious  thought  in  America.  John 
Knox,  pioneer  reformer  of  Scotland,  came  to  Geneva  in  1555  and 
remained  there,  barring  some  temporary  absences,  until  1559.  He 
was  the  friend  and  associate  of  Calvin,  and  it  was  at  the  latter's  re- 
quest that  the  Lesser  Council  of  the  city  provided  quarters  for  the 
use  of  the  English  congregation  of  which  Knox  was  pastor.  The 
place  which  Geneva  held  in  the  affections  and  beliefs  of  Knox  is 
shown  by  his  declaration  that  "it  is  the  most  perfect  school  of  Christ 
that  ever  was  in  earth  since  the  days  of  the  apostles." 

1  Green,  "History  of  the  English  People"  (New  York,  1879),  II,  280. 

2  "  It  was  part  of  Calvin's  policy  to  admit  strangers  to  the  freedom  of  the  city  un- 
restrictedly.    Towards  his  later  years  we  find  (1558)  as  many  as  three  hundred  incor- 
porated in  a  single  day,  of  whom  two  hundred  were  French,  fifty  English,  twenty-five 
Italians,  and  five  Spaniards.     But  even  in  1536  they  were  numerous  enough  to  excite 
the  jealousy  of  the  native  patriots." — Pattison,  "Essays"  (Oxford,  1889),  II,  17. 

"In  the  one  year,  1553,  more  than  eight  hundred  went  to  the  continent.  Among 
these  there  were  leaders  of  thought ;  for  this  number  included  five  bishops,  five  deans, 
four  archdeacons,  and  fifty  doctors  of  divinity  and  famous  preachers."  —  Mowry, 
"The  Influence  of  John  Calvin  on  the  New  England  Town  Meeting,"  New  England 
Magazine,  II,  105. 

3 Taylor,  "John  Knox"  (New  York,  1885),  105. 


SWITZERLAND   AND   THE   REFORMERS  35 

Ten  years  after  the  departure  of  Knox  came  one  upon  whom  his 
mantle  was  ultimately  to  fall,  —  Andrew  Melville.  Calvin  was  now 
no  more,  but  Beza,  who  had  succeeded,  received  Melville  and  made 
him  a  teacher  of  the  humanities  in  the  college  (schola  privata)  where 
he  remained  five  years.1  He  had  commenced  the  study  of  civil  law 
at  Poitiers  and  he  continued  it  at  Geneva,  aided  by  intimate  associa- 
tion with  several  Frenchmen  "deeply  learned  in  civil  law  and  political 
science,"  whom  the  persecutions  culminating  in  the  massacre  of  St. 
Bartholomew  had  driven  to  the  Swiss  town.2 

Shortly  after  Melville  had  become  thus  established,  another  came 
whose  influence  upon  the  religious  and  political  ideas  of  the  future 
was  even  more  extensive.  Thomas  Cartwright  had  been  a  professor 
of  divinity  at  Cambridge,  but,  like  Calvin  and  Melville,  his  tastes 
led  him  also  into  the  field  of  law,  and  during  Queen  Mary's  reign  he 
actually  followed  the  legal  profession.3  Deposed  from  his  professor- 
ship during  Elizabeth's  reign,  he  left  England  and  came  eventually  to 
Geneva,  where  the  archives  record  some  interesting  events  in  his 
career.  The  first  reference  to  him  is  as  follows :  — 

" English  minister.  The  ministers  announced  that  there  was  an  English- 
man, an  excellent  theologian,  whom  they  had  asked  to  give  some  lectures  on 
theology,  on  Thursday  and  Friday,  which  he  had  promised  to  do  gratuitously, 
if  agreeable  to  the  gentlemen  who  have  the  approval  thereof."  4 

This  "excellent  theologian"  was  Cartwright,  and  the  scene  of  his 
labors  was  the  famous  academy  founded  by  Calvin  a  dozen  years 
before. 

We  next  hear  of  Cartwright  from  the  "Venerable  Company,"  5 
whose  record  is  as  follows :  — 

"1572.  Friday,  Jan.  18.  All  the  brothers  being  assembled,  letters  from 
England  written  by  M.  Chevalier,  were  read,  recalling  M.  Thomas  Cartwright. 
Thursday  25  (24)  M.  Beza  proposed  to  the  Consistory,  if  it  found  favor,  that 
M.  Cartwright  and  M.  Van  Til  (pastor  of  the  Flemish  congregation  at  Geneva) 
should  be  present  at  some  of  our  consistories,  as  they  desire  to  observe  the  order 

1  See  American  Historical  Review,  V,  286,  where  some  new  facts  in  Melville's 
Genevan  career  are  brought  to  light. 

2  "Encyclopaedia  Britannica"  (gth  Ed.),  XV,  852. 

3  Id.  V,  145. 

*  "Register  of  the  Council,"  June  28,  1571 ;  American  Historical  Review,  V,  285. 

6  This  was  a  board  composed  of  pastors  and  teachers  of  theology  which  "super- 
intended the  theological  students,  selected  the  ministers  for  ordination,  subject  to  the 
approbation  of  the  flock,  and  had  the  ordinary  administration  of  the  church."  —  Patti- 
son,  "Essays"  (Oxford,  1889),  II,  24. 


36  THE    PEOPLE'S   LAW 

there  followed  and  to  profit  by  and  make  use  of  it  not  alone  for  the  government 
of  their  churches,  but  also  to  answer  those  who  speak  ill  of  our  consistory.  The 
proposal  was  favored  and  it  was  agreed  that  the  gentlemen  should  be  asked  to 
approve  it  for  the  next  consistory. 

"  Friday  the  26  (25)  M.  Cartwright  was  invited  to  our  Company  and  was 
thanked  for  the  trouble  which  he  had  taken  for  this  school  which  we  wish  to 
recognize  to  the  extent  of  our  power,  both  generally  and  in  particular,  recommend- 
ing this  church  to  his  prayers  as  also  to  those  of  our  English  brethren  to  whom 
he  was  going,  whom  we  gladly  saw  here,  when  in  exile,  and  love.  Also  we  desire 
this  sacred  friendship  to  be  well  preserved  and  on  our  part  we  shall  always  be 
glad  to  render  them  service. 

"  M.  Cartwright  on  his  part  thanked  the  brethren  very  heartily  for  the  honor 
which  he  had  received,  especially  from  them  and  also  for  the  kindness  and  good 
will  shown  him  generally  in  this  city,  and  offered  to  do  anything  in  his  power 
for  this  church  to  which  he  felt  under  perpetual  obligations.  The  brethren  in- 
vited him  and  his  countrymen  who  were  in  the  city  to  dine  with  them  at  the  rec- 
toral  banquet  next  Tuesday  at  M.  Charles  Perrot's  house."1 

A  proposal  so  important  as  this  —  that  a  stranger  should  be 
admitted  to  the  sessions  of  the  Consistory  —  was  not,  however,  to 
be  accepted  hastily.  It  comes  now  before  the  council:  — 

"Thomas  Cartwright,  Englishman,  doctor  of  theology,  having  lived  here 
some  time  because  he  was  not  in  favor  in  England,  because  he  had,  in  public 
lectures,  defended  the  ecclesiastical  discipline  as  here  practiced,  appeared  and 
thanked  the  gentlemen  for  the  honor  they  had  done  him  by  harboring  him  in 
the  city  where  he  was  again  honored  by  being  invited  to  lecture  on  theology  with 
M.  Beza  in  his  turn,  where,  according  to  the  report  of  the  company  of  ministers, 
witnessed  by  said  Beza,  who  spoke  for  him  because  he  (Cartwright)  did  not 
speak  good  French,  he  bore  himself  with  learning  and  fidelity. 

"And  inasmuch  as  he  had  been  recalled  to  England,  he  did  not  wish  to  start 
without  thanking  the  gentlemen  and  offering  his  services,  requesting  permission, 
however,  to  be  present  once  at  the  Consistory  to  observe  the  order  there  followed, 
so  as  to  take  a  report  of  it  home  with  him.  Thereupon  it  was  agreed  to  thank 
him  for  the  honor  he  had  done  the  school  and  to  offer  him  reward  for  his  lectures 
likewise  acceding  to  his  request  and  to  the  similar  one  of  M.  Van  Til,  seeing  that 
what  they  sought  was  for  a  good  end  and  not  for  mere  curiosity."  2 

"Last  Thursday  [Jan.  31],  M.  Cartwright  was  present  at  the  Consistory."3 

The  body  whose  deliberations  Cartwright  was  thus  at  last  per- 
mitted to  witness  has  been  described  as  follows :  — 

"In  this  board  the  five  pastors  of  the  city  parishes  were  united  with  twelve 
elders  (anciens)  elected  out  of  the  members  of  the  Councils,  by  the  Councils  and 

1  "Register  of  the  Company,"  Jan.,  1572,  American  Historical  Review,  V,  285. 

"Register  of  the  Council,"  Jan.  29,  1572,  American  Historical  Review,  V,  285-286. 
3  "Register  of  the  Company,"  Jan.,  1572,  American  Historical  Review,  V,  286. 


SWITZERLAND   AND   THE    REFORMERS  37 

the  Company  united.  It  was  a  main  point  with  Calvin  that  the  lay  element  in 
this  body  should  outnumber  the  ecclesiastical.  For  the  control  given  to  this  Con- 
sistory over  the  morals  and  deportment  of  the  citizens  was  so  searching  and 
domestic,  that  to  be  at  all  tolerable,  it  should  be  lodged  in  the  hands  of  the  con- 
gregation itself;  exercised  by  the  people  themselves  upon  themselves.  To  the 
Consistory  belonged  an  absolute  and  irresponsible  authority  of  censure,  enforced 
by  the  power  of  excommunication,  which  the  civil  arm  was  obliged  to  give  effect  to. 
From  his  cradle  to  his  grave  the  Genevese  citizen  was  pursued  by  this  inquisi- 
torial eye.  Those  parts  of  life  which  are  most  private  and  withdrawn  were  here 
exposed  to  public  view,  and  made  an  affair  of  public  concernment  and  welfare."  l 

Thus  on  the  eve  of  his  departure  for  England,  where  he  was  to 
lay  the  foundations  of  the  Puritan  polity,  Thomas  Cartwright  was 
awarded  the  rare  privilege  of  beholding  the  inner  workings  of  this 
governing  body  of  the  Calvinistic  theocracy.  Well  has  it  been  de- 
clared that  we  have  here  "substantial  and  striking  proof  of  the 
Genevan  origin  of  the  ecclesiastical  system  of  the  Puritans."  2 

There  have  been  other  instances  of  Swiss  influence  upon  our  in- 
stitutions not  connected  with  the  Calvinistic  movement,  but  forming 
an  instructive  sequel.  Two  centuries  after  Calvin  came  Rousseau, 
who  wrote,  evidently,  with  the  constitution  of  his  native  city  of 
Geneva  before  his  mind.  His  "  Contrat  Social,"  with  its  bold  insist- 
ence upon  the  necessity  of  popular  assent  to  laws,  was  widely  read  in 
America  at  the  outbreak  of  the  Revolution.3  And  besides  fostering 
that  movement  it  may  well  have  stimulated  the  tendency  in  the  New 
England  colonies  toward  the  submission  of  constitutions  to  a  popular 
vote.  In  our  own  day,  the  university  of  this  same  city  of  Geneva  — 
successor  of  Calvin's  Academy  —  has  sent  forth  a  genius  whose 
trinity  of  works  on  democratic  institutions,4  more  than  those  of  any 
other  writer,  has  enabled  us  to  rediscover  the  half -forgotten  sources 
of  our  institutional  life  and  has  taught  us  our  indebtedness  to  the 
movements  of  the  sixteenth  century.  It  is  he,  also,  who  has  shown 
us 5  how  Swiss  influence  on  America  has  reacted  and  how  the  idea 

1  Pattison,  "Essays"  (Oxford,  1889),  II,  25. 

2  American  Historical  Review,  V,  285. 

3  Oberholtzer,  "The  Referendum  in  America"  (2d  Ed.,  New  York,  1900),  2; 
Reich,  "  A  New  View  of  the  War  of  American  Independence,"  North  American  Review, 
CLXXVII,  41. 

4  "Histoire  du  Plebiscite  dans  1'  Antiquite"  (Paris,  1887);  "Rise  of  Modern  De- 
mocracy in  Old  and  New  England"  (London,  1894);    "Adoption  and  Amendment 
of  Constitutions"  (New  York  and  London,  1895). 

5  "Adoption  and  Amendment  of  Constitutions"  (Kazan's  Trans.,  New  York  and 
London,  1895),  257-262. 


38  THE  PEOPLE'S   LAW 

of  popular  ratification,  first  applied  to  constitutions  in  New  England, 
was  transplanted  to  France  and  thence  to  Switzerland,  where  though 
in  vogue  as  to  ordinary  laws,  it  had  never  been  employed  in  con- 
stitution-making. Calvin,  Rousseau,  Borgeaud  —  trio  of  Genevese 
of  different  epochs  —  how  utterly  unlike  in  personal  traits,  how  diver- 
gent in  their  systems  of  political  philosophy,  and  yet  how  harmonious 
in  their  teaching  that  laws  —  fundamental  laws  —  must  derive  their 
validity  from  the  assent  of  the  people  !  No  other  city  of  Europe  has 
produced  a  group  whose  utterances  have  so  converged  to  this  end 
and  so  strongly  influenced  the  course  of  our  development. 

As  a  nation  we  are  now  experiencing  another  phase  of  Swiss  in- 
fluence —  the  study  and  discussion  of  the  referendum  with  a  view  to 
its  possible  adoption  in  America.  Whatever  may  be  the  result  of  this 
movement,  it  should  at  least  emphasize  the  value  of  our  own  system 
of  popular  ratification  whose  history  is  hardly  less  ancient  than  the 
Swiss  institution,  whose  development  has  been  parallel,  and  whose 
roots  reach  downward  into  the  same  soil. 


CHAPTER  V 
THE  CALVINISTS  IN  GREAT  BRITAIN 

A.    The  Doctrine  of  Congregational  Assent  and  the  Idea  of  the 

Covenant 

THE  British  refugees  were  not  slow  in  applying  the  lessons  learned 
at  Geneva.  Calvin's  "Institution"  has  been  characterized  as  "the 
chief  religious  and  political  text-book  of  the  English  Puritans,"  1 
and  the  doctrine  of  the  necessity  of  congregational  assent,  enunciated 
in  that  work,  was  soon  transplanted  to  Great  Britain. 

Cart wright  returned  to  England  in  1572  fresh  from  the  scenes 
witnessed  at  the  long- sought  meeting  of  the  Genevan  Consistory,  and 
in  the  same  year  he  launched  a  treatise  which  brought  to  English 
readers  the  ideas  of  the  Franco-Swiss  reformer,  and  sounded  the  key- 
note of  English  Puritanism.  The  fundamental  idea  of  this  work  was 
its  contention  that  all  important  measures  of  church  administration, 
like  the  expulsion  or  admission  of  members  or  clergy,  "required  the 
assent  of  the  whole  congregation."  2 

Melville  returned  to  Scotland  two  years  later  and  became  the 
organizer  of  the  Presbyterian  church  and  the  principal  author  of  the 
"Second  Book  of  Discipline,"  which  provided  that  "no  person  be 
intruded  to  any  of  the  offices  of  the  Kirk  contrary  to  the  will  of  the 
congregation  to  whom  they  are  appointed."  3 

Soon  the  idea  began  to  be  applied  to  civil  affairs.  Robert  Brown, 
who  was  at  one  time  a  student  of  Cartwright's  at  Cambridge,  put 
forth  a  work  in  which  he  declared  that  "civill  magistrates  are  persons 

1  Osgood,  "The  Political  Ideas  of  the  Puritans,"  Political  Science  Quarterly,  VI, 
Pt.  I,  3,  American  Colonies  in  the  Seventeenth  Century,  I,  201. 

2  "  Admonition  to  the  Parliament "  (2d  Ed.,  1617),  59. 

3  Burton,  "  History  of  Scotland  "  (Edinburgh  and  London),  V,  202-204. 

"  The  Second  Book  is,  in  fact,  a  revision  of  the  Huguenot  discipline  adopted  at  the 
first  national  synod  of  the  Reformed  Church  of  France  held  at  Paris  in  1559.  It  is  much 
shorter  than  the  French  document,  yet  far  more  complete ;  and  any  one  comparing  the 
two  will  find  that  they  bear  to  each  other  the  relation  of  a  rough  draft,  which  has  been 
completed  and  polished  by  able  hands."  —  Id.  202,  203. 

39 


40  THE   PEOPLE'S   LAW 

authorized  of  God,  and  receyved  by  the  consent  and  choyse  of  the 
people,  whether  officers  or  subjectes."  *  Here,  too,  we  find  the  source 
of  the  notions  rife  in  New  England  in  the  following  century,  such  as 
were  expressed  in  Hooker's  famous  Hartford  sermon  in  which  he 
lays  down  the  proposition  that  "the  choice  of  public  magistrates  be- 
longs unto  the  people  by  God's  own  allowance,"  2  and  in  Mather's 
work,  supposed  to  have  been  written  to  the  Salem  church,  declaring 
that  "in  a  free  state  no  magistrate  hath  power  over  the  bodies,  goods, 
lands,  liberties  of  a  free  people,  but  by  their  free  consent." 

Coupled  with  this  doctrine  the  Anabaptist  notion  of  the  covenant 
reappears  among  the  British  Calvinists,  often  under  the  name  of 
"association."  The  idea  gained  ground  that  religious  (and  ulti- 
mately political)  movements  and  enterprises  ought  to  be  organized, 
and  that  such  organization  should  be  evidenced  by  a  written  bond 
of  union,  generally  styled  a  covenant,  which  should  formulate  and 
embody  fundamental  matters  and  doctrines,  and  that  the  "common 
consent"  of  those  who  were  concerned  therein  should  be  expressed 
by  subscribing  such  an  instrument.  It  was  an  idea  which  the  Scotch 
especially  seized  upon  and  developed ;  for  of  all  the  peoples  who 
embraced  the  Reformation,  they  took  the  movement  most  seriously 
and  applied  its  fundamental  doctrines  most  literally.  From  Calvin 
they  learned  to  look  to  the  Bible  as  the  supreme  authority  in  all 
matters,  and  their  political  ideas,  no  less  than  their  religious  dogmas, 
were  drawn  largely  therefrom.  "In  various  Old  Testament  pas- 
sages," observes  Bayne,4  "the  Hebrews  are  described  as  entering  into 
covenant  with  God.  In  these  the  Scots  found  a  warrant  for  adopt- 
ing a  similar  course.  Time  could  not  invalidate,  or  circumstances 
modify,  the  validity  of  such  a  covenant." 

But  the  Scots  were  not  alone  in  the  possession  of  this  idea.  Brown, 
the  English  Congregationalist,  in  his  book5  defined  the  church  sub- 
stantially as  a  company  of  believers  united  "by  a  willing  covenant." 

1  "  A  Book  Which  Showeth  the  Life  and  Manners  of  All  True  Christians"  (Middel- 
burg,  1582;   British  Museum,  sec.  37,  c.  57). 

2  "  Collections  of  Connecticut  Historical  Society,"  I,  20. 

3  "Model  of  Church  and  Civil  Power."    See  Roger  Williams'  "Bloody  Tenent  of 
Persecution"  (London,  1644).     The  portion  quoted  in  the  text  is  afterward  qualified 
by  a  concession  of  the  plenary  power  of  magistrates. 

4  "The  Chief  Actors  in  the  Puritan  Revolution"  (ad  Ed.,  London,  1879),  215. 

6  "A  Book  Which  Showeth  the  Life  and  Manners  of  All  True  Christians,"  Defini- 
tions, I,  35.  See  also  Dexter,  "The  Congregationalism  of  the  Last  Three  Hundred 
Years"  (New  York,  1880),  106. 


THE   CALVINISTS   IN    GREAT    BRITAIN  41 

"The  Puritans,"  observes  Briggs,1  "wrought  out  the  doctrine  of  the 
covenant.  They  understood  it  as  the  structural  principle  of  their 
theology."  In  a  subsequent  chapter2  we  shall  follow  the  parallel 
development  and  application  of  this  idea  in  the  civil  affairs  of  Scot- 
land and  England. 

B.   Connection  between  Calvinism  and  the  Guilds 

It  is  clear  that  in  Calvinism,  as  taught  and  practised  at  Geneva, 
we  have  the  primary  source  of  the  Puritan  creed.  But  will  this  alone 
account  for  the  political  contributions  of  Puritanism  and  particularly 
for  its  achievement  in  preserving  and  bequeathing  to  the  modern 
world  the  practice  of  the  popular  approval  of  laws  ?  If  so,  how  shall 
we  explain  the  sterility  as  regards  these  results  of  the  sects  of  other 
nationalities  which  learned  their  creeds  at  Geneva  ?  For  the  British 
refugees  were  not  the  only  ones  who  flocked  to  the  "city  of  Calvin" ; 
they  were  not  even  the  most  numerous.  They  were  far  outnum- 
bered by  the  French,  and  there  were  also  Dutch,  Italian,  and  even 
Spanish.3  Yet  none  of  these  introduced,  as  we  shall  find  the  British 4 
did,  the  idea  of  popular  legislation  into  their  respective  states. 

It  is  evident  that  this  political  service  of  the  British  Calvinists 
was  due  to  something  more  than  creed  —  important  as  the  latter  was 
in  affording  the  original  inspiration.  There  must  have  been  some 
racial  element  —  something  peculiar  to  these  Britons  —  which  made 
them  so  much  more  fruitful  in  constitutional  results  than  the  other 
branches  of  Calvinists.  Strong  evidence  exists  that  this  element  was 
supplied  by  those  institutions,  distinctively  British  in  their  political 
influence,  whose  place  in  the  line  of  constitutional  development  has 
already  been  briefly  considered,5  viz.  the  guilds. 

The  Calvinists  appeared  on  the  scene  just  as  the  guilds  were 
declining  as  a  factor  in  the  social  and  civic  life  of  England,  but  after 
these  had  succeeded  in  keeping  the  English  people  familiar  with  the 
idea  of  making  their  own  local  regulations.  This  coincidence  in 

1  "American  Presbyterianism "  (New  York,  1885),  54. 

2  Chap.  VI,  post. 

3  Pattison,  "Essays:  Calvin  at   Geneva,"  II,  17.     Cf.    Green,  "History  of  the 
English  People"  (New  York,  1879),  II,  280,  281. 

4  The  term  "British"  is  intended  to  include  the  Lowland  Scotch,  who  were  partly 
of  Anglo-Saxon  blood  and  from  whom  mainly  came  the  Covenanters.     Hanna,  "The 
Scotch-Irish"  (New  York,  1902),  I,  Chap.  XIII. 

6  Ante,  Chap.  II. 


42  THE  PEOPLE'S   LAW 

point  of  time  is  not  the  sole  or  the  strongest  fact  suggesting  a  con- 
nection between  the  two  and  a  direct  influence  of  the  former  upon 
the  latter.  We  may  note  also :  — 

i.   Local  Contact  and  Environment. 

The  town  of  Norwich  has  been  called  "the  cradle  of  Congrega- 
tionalism." *  It  was  fertile  soil  for  a  new  religious  movement,  for  it 
had  been  one  of  the  strongholds  of  the  Lollards  as  well  as  of  the 
early  Protestant  reformers  in  Elizabeth's  reign.2  To  Norwich  about 
1580  came  Robert  Brown.3  He  had,  as  we  have  seen,  been  a  student 
under  Thomas  Cartwright  at  Cambridge,  but  had  advanced  beyond 
the  position  of  his  teacher  and  started  a  movement  of  his  own.4  At 
Norwich,  after  preaching  at  private  houses  and  carrying  on  personal 
work  with  individuals,  he  organized  a  church  or  "company  of  be- 
lievers." Through  the  opposition  of  the  Bishop  he  was  finally  com- 
pelled to  leave,  and  took  most  of  his  flock  to  Middelburg,  Zealand, 
though  the  church  at  Norwich  continued  to  exist.  Brown  has  been 
styled  5  "the  founder  of  Congregationalism." 

"Men  suppose,"  says  Dexter,8  "that  rude  galleons  were  blown  across  the 
great  and  wide  sea  to  our  western  continent  centuries  before  that  famous  expedi- 
tion of  1492;  but  as  they  never  went  back  to  carry  the  tidings  it  is  usual  to  say 
that  Christopher  Columbus  discovered  America.  And  I  submit  that  the  name 
of  Robert  Brown,  and  not  the  name  of  Richard  Fitz,  stands  legitimately  first  in 
the  list  of  our  distinguished  politists;  and  that  the  true  ter-centenary  of  English 
Congregationalism  remains  properly  to  be  celebrated  in  1880  at  Norwich.  .  .  . 
The  Independents  of  England  and  the  Congregationalists  of  America,  more  nearly 
than  from  any  other,  are  to-day  in  lineal  descent  from  that  little  Norwich  church." 

It  was  near  Norwich,  also,  that  John  Robinson  was  stationed 
while  still  a  clergyman  of  the  Established  Church,  and  it  was  from 

1  Borgeaud,  "Rise  of  Modern  Democracy  in  Old  and  New  England"  (London, 
1894),  87,  note. 

2  "Encyclopaedia  Britannica"  (gth  Ed.),  XVII,  595. 

3  Brown  was   born  at  Tolethorpe,  Rutlandshire,   ca.   1550,  and  was    therefore 
about  thirty  years  of  age  when  he  went  to  Norwich.    An  interesting  account  of  his  life 
and  work  is  given  by  Dexter,  "The  Congregationalism  of  the  Last  Three  Hundred 
Years"  (New  York,  1880),  61-128. 

4  Gooch,  "History  of  English  Democratic  Ideas  in  the  Seventeenth  Century" 
(Cambridge,  1898),  49. 

6  Borgeaud,  "Rise  of  Democracy  in  Old  and  New  England"  (London,  1894),  33. 

6  Dexter,  "The  Congregationalism  of  the  Last  Three  Hundred  Years"  (New  York, 
1880),  61-128.  Mr.  Burrage  takes  a  less  favorable  view  of  Brown,  "who,"  he  says, 
"could  not  be  called  a  great  leader,  for  he  was  rash  and  impulsive."  —  "The  Church 
Covenant  Idea,"  34,  35. 


THE   CALVINISTS   IN   GREAT    BRITAIN  43 

here  that  he  came,  a  quarter  of  a  century  after  Brown,  to  become  the 
pastor  of  the  scattered  flock  at  Scrooby,  and  later  at  Leyden,  which 
was  the  nucleus  of  the  colony  of  New  Plymouth.1 

Now  Norwich  and  the  county  of  Norfolk,  of  which  it  was  the 
capital,  had  long  been  a  prominent  centre  of  activity  in  guild  life.2 
Brentano3  speaks  of  twelve  of  the  religious  or  social  guilds  which 
existed  at  Norwich,  and  there  seem  to  have  been  even  more  at  Lynn 
in  the  same  shire.4  Nearly  one-half  the  ordinances  in  Toulmin 
Smith's  collection  were  enacted  by  the  guilds  of  Norfolk  —  one- 
fourth  of  these  by  the  Norwich  guilds.  Moreover,  this  was  one  of 
the  towns  where  all  freemen  or  citizens  were  required  to  be  members 
of  some  guild.5  A  ''composition  entered  into  by  the  citizens"  in  1414 
provided :  — 

"  &  yt  alle  maner  of  men  now  citezeyns  of  ye  Cite  shal  be  enrolled  of  what 
craft  yt  he  be  wiin  XII.  months  &  i  day,  upon  payne  of  forfaite  of  his  fraimchise, 
payenge  I.  d  for  ye  entre ;  &  yt  alle  maner  of  men  yt  shal  be  fraunchised  for  ys 
tyme  forth,  shal  be  enrolled  under  a  craft,  &  be  assent  of  a  craft,  yt  is  for  to  seyne 
ye  maisters  and  maistres  of  ye  same  craft  yt  he  shal  be  enrolled  of  shal  come  to 
ye  Chamber  &  witnesse  yt  it  is  her  wille  yt  he  shude  be  made  freman  of  her  Craft, 
payenge  to  ye  Chamber  atte  lieste  XX  s.  &  more  after  ye  quantite  of  his  goods, 
as  he  may  accord  wit  ye  Chamberleyne."  8 

In  1548,  during  the  Protestant  upheaval  of  the  reign  of  Edward 
VI,  the  guilds  are  said  to  have  been  suppressed.7  But  this  appears 
to  have  related  mainly  to  their  religious  features,  such  as  masses 
and  prayers  for  the  dead;  "the  crafts  remained  as  societies,  respon- 
sible for  securing  good  work  and  possibly  something  more."  8 

1  Goodwin,  "The  Pilgrim  Republic"  (Boston,  1888),  26. 

2  See  an  interesting  paper  entitled  "Some  Notes  upon  the  Craft  Guilds  of  Nor- 
wich" (with  particular  references  to   the   Masons),  by  J.    C.    Tingey,  Ars  Quatuor 
Coronatorum  (London,  1902),  XV,  197;  also  in  the  same  volume  at  p.  205,  "Extracts 
from  the  Records  of  the  Corporation  of  Norwich,"  by  Walter  Rye.     These  contribu- 
tions abound  in  evidence  of  the  important  part  played  by  the  craft  guilds  in  the  civic 
life  of  Norwich. 

3  "History  and   Development   of   Gilds"   (London,    1870),    18.      Cf.   Walford, 
"Guilds"  (London,  1888),  Chap.  36. 

4  Walford,  "Guilds"  (London,  1888),  Chap.  34. 

5  Blomefield,   "History  of  Norfolk"   (Norwich,   1745),  III,   131;    Gross,   "The 
Gild  Merchant"  (Oxford,  1890),  I,  124,  note. 

8  Gross,  "The  Gild  Merchant"  (Oxford,  1890),  II,  189,  190. 

7  Tingey,  "  Some  Notes  upon  the  Craft  Guilds  of  Norwich,"  Ars  Qitatuor  Corona- 
torum, XV,  200,  201. 

8  Id.  201. 


44  THE   PEOPLE'S   LAW 

During  Elizabeth's  reign,  by-laws  for  the  Norwich  crafts  con- 
tinued to  be  issued,1  those  for  the  "  Fellowship  and  company  of 
Masons"  2  appearing  in  1572,  only  eight  years  before  Brown's  arrival 
in  the  city.  A  similar  set  of  by-laws  appears  in  the  reign  of  James  I, 
and  wardens  for  the  crafts  were  appointed  at  Norwich  down  to  the 
middle  of  the  eighteenth  century.3 

It  was  in  this  atmosphere,  permeated  with  the  spirit  of  guild  life 
and  infused  with  the  democratic  ideas  which  it  fostered,  surrounded 
by  these  venerable  institutions  which  had  formed  almost  the  only 
school  of  the  English  people  in  self-government  during  the  Middle 
Ages,  that  Brown  founded  his  church.  He  and  his  followers  could 
hardly  have  escaped,  if  they  would,  the  effect  of  this  environment, 
or  failed  to  be  influenced  by  the  traditions,  customs,  and  practices  of 
the  guilds.  If  any  of  them  had  been  numbered  among  the  refugees 
at  Geneva,  how  strongly  must  they  have  been  reminded  by  guild  legis- 
lation of  the  methods  by  which  the  "Ordinnances  Ecclesiastiques"  4 
were  adopted.  Even  the  name  was  common  and  the  two  precedents 
necessarily  strengthened  each  other.  In  Brown's  own  case  also  there 
was  the  influence  of  heredity  and  family  tradition,  for  one  of  his 
ancestors  was  a  " merchant  of  the  staple"  —  a  member  of  an  ancient 
company  or  guild  of  merchants  which  exported  the  staple  wares.5 

A  keen  observer 6  in  this  field  has  said  :  — 

1  Tingey,  "  Some  Notes  upon  the  Craft  Guilds  of  Norwich,"  Ars  Quatuor  Corona- 
tor  urn,  XV,  201. 

2  An  interesting  and  natural  result  was  that  Norwich  continued  to  be  a  seat  of  this 
particular  craft,  which  alone  survives  of  all  the  guilds,  though  transformed  into  the 
modern  fraternity  of  Freemasons.     A  lodge  existed  at  Norwich,  shortly  after  the  transi- 
tion from  operative  to  speculative  masonry  had  been  accomplished.     See  Le  Strange, 
"History  of  Freemasonry  in  Norfolk";   cf.  Ars  Quatuor  Coronatorum,  XV,  175.     And 
it  is  still  an  important  centre  for  the  fraternity.     See  an  account  of  the  1902  summer 
excursion  to  Norwich  of  Quatuor  Coronati  Lodge,  No.  2076,  London,  Ars  Quatuor 
Coronatorum,  XV,  141.     Even  more  significant  is  the  fact  that  the  Masonic  order  in 
some  jurisdictions  has  retained  the  ancient  guild  plan  of  requiring  "common  assent" 
to  craft  regulations,  and  has  even  improved  that  plan  so  that  it  approaches  closely  to 
the  methods  of  modern  constitution-making.     Proposed  changes  in  the  constitution 
of  the  fraternity  in  a  given  jurisdiction  are  framed  in  the  Grand  Lodge,  and  by  it  sub- 
mitted to  the  subordinate  lodge  where  the  individual  members  vote  to  accept  or  reject. 
See  Law  of  Freemasonry  in  Nebraska,  1904. 

8  Ars  Quatuor  Coronatorum,  XV,  202. 

4  See  ante,  31,  32. 

8  Dexter,  "The  Congregationalism  of  the  Last  Three  Hundred  Years"  (New 
York,  1880),  63,  note  7. 

8  Borgeaud,  "Rise  of  Democracy  in  Old  and  New  England"  (London,  1894), 
86,  87. 


THE   CALVINISTS   IN   GREAT   BRITAIN  45 

/ 

"The  example  of  the  boroughs  or  municipal  corporations,  and  of  the  cor- 
porations of  merchants  and  artisans,  is  often  quoted  in  the  pamphlets  of  the  early 
period  of  Congregationalism.  It  is  well  known  that  both  these  were  the  outcome 
of  the  Guilds  of  the  Middle  Ages,  whose  internal  organization  they  had  borrowed. 
It  is  extremely  probable 1  that,  though  the  Bible  supplied  the  Separatists  with  the 
original  idea  of  their  Church  covenant,  the  form  which  that  covenant  actually 
took  in  their  first  congregations  was  not  uninfluenced  by  their  knowledge  of  the 
statutes  established  by  the  founders  of  these  Guilds,  and  by  the  custom  which 
then  prevailed  of  requiring  new  members  to  give  their  adhesion  to  the  statutes 
by  an  individual  vote.  So  striking  are  the  analogies,  that  it  even  seems  probable 
that  Brown,  when  he  was  organizing  his  Church  at  Norwich,  had  before  him, 
side  by  side  with  his  Bible,  the  statute  of  one  of  these  pious  corporations,  once  so 
numerous  and  influential  in  the  county  of  Norfolk." 

One  of  the  institutions  which  still  survived  at  Norwich  in  Brown's 
time  was  the  Guild  of  St.  George,  which 

"was  a  very  influential  body.  The  mayor  of  the  city  on  leaving  office  became  alder- 
man of  this  fraternity  for  the  ensuing  year.  If  the  alderman  of  the  guild  died,  the 
mayor  took  his  place.  A  person  expelled  from  the  brotherhood  lost  his  citizenship." 2 

This  particular  guild  seems  to  have  been  quite  familiar  to  the 
"founder  of  Congregationalism." 

"The  very  name  of  Company,  which  was  borne  by  this  corporation  after 
the  Reformation,  was  that  under  which  his  Church  of  'true  Christians'  presented 
itself  to  Brown.  It  was  the  only  one  which  the  law  would  at  this  time  sanction." 3 

2.   The  Pilgrim  Companies 

External  evidence  of  the  connection  between  Puritanism  and  the 
guilds  is  also  to  be  found  in  the  character  of  the  companies  formed 
among  the  Pilgrims  for  emigration  to  America.  The  guilds  in  the 
course  of  their  evolution  had  given  rise  to  companies  known  as  the 
"  Merchant  Adventurers,"  4  which  were  "  intended  to  give  protection 
to  Englishmen  trading  abroad."  5  The  principal  ones  are  thus  de- 
scribed by  Gross : 6  — 

1  But  much  more  probable  that  they  acquired  it  from  the  Anabaptists.     "The 
Brownistsdid  borrow  all  their  Tenets  from  the  Anabaptists  of  old."  —  Baillie,  "Ana- 
baptism  and  Independency,"  etc.,  49.     See  other  similar  statements  quoted  by  Burrage, 
"The  Church  Covenant  Idea,"  42,  43.     Cf.  Chap.  Ill,  ante. 

2  Gross,  "The  Gild  Merchant"  (Oxford,  1890),  I,  84,  note. 

3  Borgeaud,  "Rise  of  Democracy  in  Old  and  New  England"  (London,  1894),  87. 

4  Gross,  "The  Gild  Merchant"  (Oxford,  1890),   I,  Chap.  VIII,  sec.  3.      "The 
trading  company  was  an  offshoot  of  the  guilds."  —  Brooks  Adams,  "The  Embryo  of 
a  Commonwealth,"  Atlantic  Monthly,  LIV,  612. 

«  Atlantic  Monthly,  LIV,  612. 

e  "The  Gild  Merchant"  (Oxford,  1890),  I,  156. 


46  THE   PEOPLE'S   LAW 

"Besides  the  Company  of  Merchant  Adventurers  trading  to  the  low  Coun- 
tries—  which  during  the  eighteenth  century  was  called  the  Hamburgh  Company  — 
various  new  Companies  of  Merchant  Adventurers  trading  to  other  lands  arose 
in  the  sixteenth  and  seventeenth  centuries,  especially  during  the  reigns  of  Eliza- 
beth and  her  immediate  successors.  Among  them  were  the  Russians  or  Muscovy 
Company,  the  Turkey  or  Levant  Company,  the  Guinea  Company,  the  Morocco 
Company,  the  East-Land  Company,  the  Spanish  Company,  and  the  East  India 
Company,  the  last-mentioned  being  the  most  powerful  of  them  all." 

Now  the  Puritan  emigrant  companies  were  organized  on  the 
model  of  these  "Merchant  Adventurers." 

"The  company  of  Massachusetts  Bay,"  observes  Mr.  Brooks  Adams,1  "was 
organized  in  the  form  of  a  trading  corporation,  just  as  the  Merchant  Adventurers, 
the  Turkey,  or  the  East  India  Company  had  been  organized.  This  as  a  legal 
proposition  does  not  seem  to  be  open  to  dispute.  At  the  same  time,  nothing  can 
be  more  certain  than  that  the  enthusiasts  who  settled  at  Boston  came  to  America 
with  no  idea  of  gain.  They  came  here  on  the  contrary,  abandoning  all  worldly 
advantages,  to  found  a  religious  republic,  in  a  land  so  far  from  England  that 
they  thought  themselves  unlikely  to  be  disturbed.  Nevertheless,  the  form  in 
which  the  British  government  gave  its  sanction  to  their  emigration  was  as  an  asso- 
ciation of  Englishmen  going  to  a  foreign  country  for  the  purpose  of  trade,  and 
taking  with  them  the  authority  necessary  to  enforce  order  among  themselves, 
just  as  the  Merchant  Adventurers  had  done  centuries  before  in  Flanders,  and  as 
the  East  India  Company  was  then  doing  in  Hindostan. 

"  Nobody  can  doubt  this  fact  who  will  make  a  very  slight  examination  of  the 
old  charters,  which  vary  from  one  another  only  in  details,  and  are  evidently  drawn 
up  upon  the  same  model." 

The  "King's  Docket"  or  memorandum  of  the  Massachusetts 
Bay  Company's  charter,  granted  in  1628,  recited  that  it  was 

"Incorporating  them  also  by  the  name  of  the  Governor  and  Company  of 
Massachusetts  Bay  in  New  England  in  America,  with  such  other  clauses  for  ye 
electing  of  Governors  and  Officers  here  in  England  for  ye  said  Company,  and 
powers  to  make  laws  and  ordinances  for  settling  ye  government  and  magistracy 
for  ye  plantation  there,  and  with  such  exemptions  from  Customs  and  Impositions 
and  some  (such?)  other  privileges  as  were  originally  granted  to  the  Councell 
aforesaid  and  are  usually  allowed  to  Corporacons  in  England."  2 

1  "The  Embryo  of  a  Commonwealth,"  Atlantic  Monthly,  LIV,  613.     Borgeaud 
says :   "  A  corporation  of  twenty-six  persons,  possessing  the  character  both  of  a  trading 
Company  and  of  a  religious  Guild,  —  it  announced  that  beyond  its  commercial  object 
it  had  a  religious  aim,  the  propagation  of  the  gospel —  had  obtained  from  Charles  I 
a  promise  that  he  would  confirm  those  rights  of  property,  which  it  had  obtained  by  con- 
tract from  the  Plymouth  Company,  on  a  portion  of  the  New  England  territory."  — 
"Rise  of  Democracy  in  Old  and  New  England"  (London,  1894),  142. 

2  See  Atlantic  Monthly,  LIV,  613. 


THE   CALVINISTS    IN   GREAT   BRITAIN  47 

The  Mayflower  company  had  also  been  organized  on  this  plan. 

"The  church  at  Leyden,"  says  Osgood,1  "when  it  opened  negotiations 
with  the  Virginia  company  respecting  a  place  of  settlement,  added  to  its 
religious  functions  the  character  of  a  business  corporation.  It  sent  agents  to 
England  to  represent  its  interests  there.  Robinson  himself  was  commissioned 
by  it  to  negotiate  with  the  Dutch  West  India  company.  The  reports  of  these 
agents  were  received  and  acted  on  by  the  church,  —  the  same  body,  organized  in 
the  same  way,  as  that  which  met  for  worship  on  the  Sabbath.  When  they  had 
resolved  to  migrate  to  New  England,  this  congregation  formed  a  joint  stock  com- 
pany with  the  merchant  adventurers  at  London." 

Borgeaud  speaks  of  "the  old  guilds  to  which  the  company  of  the 
Pilgrim  fathers  may  be  compared  from  a  legal  point  of  view."  2  Like 
the  guilds  these  companies  had  a  sort  of  legal  solidarity,  a  spirit  of 
mutual  helpfulness  among  their  members,  and,  what  interests  us 
most,  all  had  a  voice  in  the  making  of  their  laws  and  regulations. 

There  was  also  at  least  one  instance  where  one  of  these  Pilgrim 
companies,  after  migrating,  consciously  followed  the  example  of  the 
guilds.  The  New  Haven  colony,  as  we  shall  hereafter  find,  in- 
cluded a  number  of  London  merchants,  and  when  the  colonists  were 
deliberating,  after  they  had  reached  their  new  home,  on  their  form 
of  government,  and  objection  was  made  to  delegating  their  powers 
to  magistrates, 

"Mr.  Theophilus  Eaton  answered  thatt  in  all  places  they  chuse  committyes, 
in  like  manner  the  companyes  of  London  chuse  the  liueryes  by  whom  the  pub- 
lique  magistrates  are  chosen.  In  this  the  rest  are  not  wronged  because  they 
expect  in  time  to  be  of  ye  liury  themselues,  and  to  haue  the  same  power.' ' 3 

On  the  same  occasion  they  adopted  a  "fundamental  agreement" 
which  was  effected  by  the  "common  assent"  of  all  the  members, 
while  they  provided  that  it  should  be  signed  by  others  who  should  be 
admitted  into  the  colony  thereafter.4  Both  of  these  were  ideas  and 
practices  of  the  guilds. 

Thus  much  of  the  external  organization  of  these  ancient  institu- 
tions and  their  successors  was  carried  forward  to  those  companies  by 
which  Puritanism  was  transplanted  to  the  New  World.  We  shall 
find  as  we  proceed  evidence  that  something  of  the  internal  spirit  and 
workings  of  the  guilds  was  likewise  absorbed  by  the  Puritans. 

"The  Political  Ideas  of  the  Puritans,"  Political  Science  Quarterly,  VI,  Pt.  I,  16. 
"Rise  of  Democracy  in  Old  and  New  England"  (London,  1894),  113. 
3  "New  Haven  Colonial  Records"  (Hartford,  1857),  14.  4  Id.  17. 


48  THE   PEOPLE'S  LAW 

Such  were  the  influences  that  produced  the  politico-ecclesiastical 
system  of  the  Calvinists ;  the  Reformation,  absorbing  the  results  of 
civic  evolution  and  reviving  the  embers  of  ancient  democratic  insti- 
tutions in  Switzerland  —  the  Guilds,  Palladium  of  British  democracy. 
Which  of  these  was  the  most  potential  we  need  not  here  consider,  for 
all  find  a  common  meeting  point  in  the  doctrine  that  the  people  are 
the  ultimate  source  of  law.  Of  this  doctrine  Calvinism  was  not  only 
the  heir  but  the  transmitter,  for  it  is  by  no  exaggerated  figure  that 
the  old  Puritan  stock  is  termed  the  "depository  of  the  sacred  fire  of 
liberty."  l 

1  Kingston,  "East  Anglia  in  the  Great  Civil  War"  (London,  1897),  3. 


CHAPTER  VI 
POPULAR  RATIFICATION  IN  THE  PUBLIC  LAW  OF  THE  BRITISH  ISLES 

A .    The  Scottish  Covenants l 

WE  have  noticed  how  attractive  the  idea  of  the  covenant  was  to 
Calvinists  of  Scotland.  As  between  that  country  and  England  it 
was  only  natural  that  the  idea  should  be  applied  earlier  to  the  public 
law  of  the  northern  kingdom.  The  first  appearance  in  Scotland  of 
Protestantism  "as  a  public  power  in  the  state"  was  preceded  by  the 
adoption  of  a  covenant.  In  1557  certain  of  the  landed  gentry  who 
were  friendly  to  the  new  religion  gathered  at  Edinburgh  and  signed 
what  is  known  in  history  as  the  First  Covenant.2  By  it  they  agree 

"to  maintain,  set  forward  and  establish  the  most  blessed  Word  of  God  and 
His  Congregation  .  .  .  forsake  and  renounce  the  Congregation  of  Satan  with 
all  the  superstitious  abomination  and  idolatry  thereof  ...  by  this  our  faithful 
promise  before  God,  testified  to  His  Congregation,  by  our  subscriptions  at  these 
presents." 

When,  about  a  quarter  of  a  century  later,  the  General  Assembly 
completed  the  reconstruction  of  the  Scottish  Kirk  according  to  the 
Presbyterian  system  by  adopting  what  was  in  reality  a  new  ecclesi- 
astical constitution,  but  which  is  known  as  the  "Second  Book  of 
Discipline,"  3  copies  of  the  "Book"  were  sent  to  the  different  pres- 
byteries into  which  the  church  had  been  divided,  somewhat  in  the 
manner  of  submitting  a  constitution.  Shortly  afterward,  in  1581, 
the  Assembly,  suspicious  concerning  the  court's  adherence  to  the 
cause  of  the  reformers,  presented  for  its  acceptance  another  cove- 
nant 4  reciting  the  essential  doctrines  of  Protestantism,  and  that  "  we 
shall  continue  in  the  obedience  of  the  doctrine  and  discipline  of  this 

1  Besides  those  discussed  in  this  chapter  several  other  Scottish  "  Bunds  "  or  cove- 
nants, mostly  of  a  local  character,  are  mentioned  by  Dr.  James  Kerr,  "The  Cove- 
nants and  the  Covenanters"  (Edinburgh,  1895),  12  et  seq. 

2  It  is  printed  in  full  in  Burton,  "History  of  Scotland"  (Edinburgh),  III,  345. 

3  Id.  V,  Chap.  LVIII.     See  ante,  39. 
*  Id.  V,  206  et  seq. 

B  49 


50  THE   PEOPLE'S    LAW 

Kirk,  and  shall  defend  the  same,  according  to  our  vocation  and  power, 
all  the  days  of  our  lives." 

This  covenant  was  signed  by  both  the  king  and  his  courtiers,  and 
then  a  step  was  taken  which  greatly  extended  the  practice  of  cove- 
nant-making. For  to  that  practice  was  added  an  application,  limited 
though  it  may  have  been,  of  the  Calvinistic  doctrine  of  "common 
assent,"  which  had  already,  as  we  have  seen,  found  lodgement  in  the 
constitution  of  the  Kirk.  The  new  covenant l  was  to  be  signed  not 
by  the  court  alone  but  by  apportion  at  least  of  the  people,  and  orders 
were  issued  to  the  ministers  to  ask  the  signatures  of  their  parishioners. 
Here  we  have,  probably,  the  nearest  approach,  up  to  this  time  in 
Great  Britain,  to  a  consultation  of  the  people.  The  signatures  re- 
quired were  not,  it  is  true,  necessarily  to  be  spontaneous.  Those 
who  refused  to  sign  were  to  be  dealt  with  "according  to  our  laws 
and  order  of  the  Kirk."  2  But  the  precedent  was  established  which 
would  one  day  lead  to  a  voluntary  expression  of  the  people's  will. 

The  next  covenant  of  importance  in  Scottish  history  was  the  out- 
growth of  the  liturgical  struggle  under  Charles  I.  In  1638,  after  the 
Presbyterians  had  lodged  their  famous  "Protestation"  against  what 
they  considered  the  "Romish  tendencies"  of  Laud,  the  proposal  was 
made  to  renew  the  covenant  of  a  half  century  before.  The  sugges- 
tion of  this  plan  is  ascribed  to  Archibald  Johnston,  an  eminent 
canonist,  to  whom,  in  conjunction  with  Sir  Thomas  Hope,  the  King's 
advocate,  and  Alexander  Henderson,  was  committed  the  task  of  pre- 
paring the  instrument.  The  two  first  named  had  been  prominent  in 
framing  the  "Protestation,"  and  are  characterized  as  "the  two  most 
distinguished  lawyers  of  the  time."  3 

"The  renewal  of  the  covenant,"  says  Burton,4  "was  a  master  stroke  of  policy. 
The  covenant  had  been  drawn  under  a  reign  of  terror.  ...  In  now  renewing 
it,  the  Supplicants  had  all  the  advantage  of  its  denunciatory  rhetoric,  while  they 
stood  free  of  all  charge  of  malignant  exaggeration." 

But  it  is  not  so  much  the  substance  and  phraseology  of  the  cove- 
nant which  interests  us  here  as  the  manner  of  its  establishment.  For 
its  promoters  were  not  satisfied  with  its  merely  passive  acceptance  or 

1  Printed  in  full  in  Burton,  "History  of  Scotland"  (Edinburgh),  V,  208. 

2  Elsewhere  the  same  authority  says  that  this  covenant  had  "only  been  signed  by 
a  select  group  of  influential  people."  (VI,  186). 

3  Brown,  "History  of  Scotland"  (Cambridge,  1902),  II,  304. 

4  VI,  183. 


POPULAR   RATIFICATION    IN   BRITISH   PUBLIC   LAW         51 

with  the  signatures  of  a  select  portion  of  the  people.  They  proposed 
to  make  it  a  truly  national  covenant,  and  their  ambition  was  no  less 
than  "to  attempt  at  least  to  draw  to  it  the  adherence  of  the  adult 
male  community  of  Scotland  at  large."  x  The  first  step  was  taken, 
naturally  enough,  at  the  capital,  and  the  scene  has  been  graphically 
described  by  a  recent  historian  as  follows : 2  — 

"The  28th  of  February,3  1638,  was  the  day  chosen  for  the  signing  of  the 
Covenant.  By  daybreak  all  of  the  commissioners  were  met.  The  Covenant 
was  read  over  to  them,  and  each  proposition  discussed  and  agreed  to.  The  meet- 
ing for  the  signing  of  the  Covenant  had  been  appointed  for  the  afternoon,  and 
crowds  of  people  soon  gathered  in  the  Greyfriars'  Church  and  churchyard.  From 
all  parts  of  the  kingdom  some  sixty  thousand  people  assembled ;  and  before  the 
commissioners  appeared  the  church  and  grounds  were  densely  filled  with  multi- 
tudes of  Scotland's  bravest  and  wisest  sons  and  daughters.  When  the  hour  of 
two  approached,  Rothes,  Loudon,  Henderson,  Dickson  and  Johnstone  entered, 
bearing  a  copy  of  the  Covenant  prepared  for  signatures.  The  Earl  of  Loudon 
then  stood  forth  and  spoke  to  the  people.  ...  He  made  an  eloquent  and  patri- 
otic address  touching  the  preservation  of  their  religion,  their  duty  to  God,  and 
to  their  country.  .  .  .  After  he  had  ceased  speaking,  Johnstone  of  Warriston 
unrolled  the  vast  sheet  of  parchment  and  read  the  Covenant.  Opportunity  was 
then  given  for  those  who  might  have  objections  to  offer  to  do  so,  but  no  objections 
were  offered.  An  aged  nobleman,  the  Earl  of  Sutherland,  was  the  first  to  sign 
the  bond,  and  then  name  followed  name  in  quick  succession  until  all  within  the 
church  had  affixed  their  signatures.  The  parchment  was  then  carried  out  to 
the  churchyard,  and  placed  on  a  flat  gravestone  for  additional  signatures.  Here 
the  scene  became  still  more  impressive.  The  emotions  of  many  became  irre- 
pressible. Some  wept  and  cried  aloud;  some  burst  into  a  shout  of  exultation; 
some,  after  their  names,  added  the  words  '  till  death';  and  some,  opening  a  vein, 
subscribed  with  their  own  blood.  As  the  space  became  filled,  they  wrote  their 
names  in  a  contracted  form,  limiting  them  at  last  to  the  initial  letters,  till  not  a 
spot  remained  on  which  another  letter  could  be  inscribed." 

The  submission  to  the  country  followed.  Copies  of  the  covenant 
containing  the  signatures  already  appended4  were  carried  to  the 
remote  districts.  There  does  not  seem  to  have  been  any  resort  to, 

1  Burton,    "  History   of    Scotland,"    VI,    186.      Brown   (II,    304)   adds   that   it 
was  signed  "with  tumultuous  enthusiasm"  and  "with  such  mutual  content  and  joy  as 
those  who  having  long  been  outlaws  and  rebels  are  admitted  again  in  covenant  with 
God." 

2  Hanna,  "The  Scotch-Irish"  (New  York,  1902),  I,  445. 

3  Brown  says  that  the  date  was  March  i.     "History  of  Scotland,"  II,  304. 

4  "It  is  noticed  that  several  existing  copies  of  the  Covenant  of  1638  bear  the  same 
names.     In  fact,  according  to  a  practice  well  known  in  later  times,  the  eminent  adherents 
of  the  cause  —  those  whose  names  were  likely  to  catch  others  —  signed  several  covenant 
sheets."  —  Burton,  VI,  186,  187. 


52  THE   PEOPLE'S    LAW 

or  occasion  for,  coercion  in  obtaining  signatures.1    How  it  was  re- 
ceived in  the  country  is  best  related  in  the  language  of  a  contemporary  :2 

"Gentlemen  and  noblemen  carried  copies  about  in  their  portmanteaus  or 
pockets,  requiring  subscriptions  thereunto,  and  using  their  utmost  endeavours 
with  their  friends  in  private  for  to  subscribe.  It  was  subscribed  publicly  in 
churches,  ministers  exhorting  their  people  thereunto.  It  was  also  subscribed 
and  sworn  privately.  All  had  power  to  take  the  oath,  and  were  licensed  and 
welcome  to  come  in;  and  any  that  pleased  had  power  and  licence  for  to  carry 
the  Covenant  about  with  him,  and  give  the  oath  to  such  as  were  willing  to  sub- 
scribe and  swear.  And  such  was  the  zeal  of  many  subscribers,  that  for  a  while 
many  subscribed  with  tears  on  their  cheeks;  and  it  is  constantly  reported  that 
some  did  draw  their  own  blood,  and  used  it  in  place  of  ink  to  underwrite  their 
names." 

The  National  Covenant  had,  in  fact,  become  the  absorbing  in- 
terest of  the  hour. 

"By  a  large  majority  of  the  nobility,"  says  Brown,3  "by  every  town  of  note 
except  Aberdeen,  by  the  mass  of  the  people  of  rank  in  all  parts  of  the  country, 
the  Covenant  was  signed  with  an  enthusiasm  such  as  had  never  before  swept 
over  the  Scottish  people.  Now,  if  ever,  was  realized  Milton's  vision  of  a  nation 
'rousing  herself  like  a  strong  man  after  sleep,  and  shaking  her  invincible  locks.'  " 

It  was  indeed  the  awakening  of  a  people  —  the  recovery  of  self- 
consciousness  on  the  part  of  the  masses  and  the  realization  that 
they  were  an  integral  part  of  the  nation,  entitled  to  be  consulted 
upon  its  most  momentous  problems  and  sharing  the  glorious  privilege 
of  shaping  its  destiny. 

That  this  enthusiasm  for  the  National  Covenant  was  not,  how- 
ever, merely  the  intoxication  of  newly  acquired  power  but  was  the 
spontaneous  expression  of  real  devotion  to  the  instrument  itself  and 
what  it  stood  for,  was  demonstrated  shortly  afterward  when  the 
king  sought  to  turn  the  tide  in  his  own  favor  and  divide  the  ranks 
of  the  "Covenanters,"  as  they  were  henceforth  called.4  To  do  this 

1  "Some  men  of  no  small  note  offered  their  subscription,  and  were  refused,  till 
time  should  prove  that  they  joined  from  love  of  the  cause  and  not  from  the  fear  of 
man." — Henderson,  quoted  in  Hanna,  "The  Scotch-Irish"  (New  York,  1902),  I,  445. 

2  "A  well  educated  country  clergyman  of  the  north  who  looked  at  the  scene  with 
divided  interest."  —  Burton,  VI,  187,  citing  Gordon's  "  Scots  Affairs." 

8  "History  of  Scotland,"  304,  305.  "To  many  of  the  poor  people  of  Scotland 
the  '  Covenant '  was  a  cause  for  which  they  were  ready  to  suffer  persecution,  imprison- 
ment, torture  and  death."  — Bisset,  "Omitted  Chapters  of  the  History  of  England" 
(London,  1864),  I,  276.  Cf.  Hanna,  "The  Scotch-Irish,"  I,  445. 

4  "  At  this  time  the  persons  heretofore  spoken  of  by  contemporary  writers  as  '  Sup- 
plicants'  receive  the  far  more  renowned  name  of  'Covenanters.'"  —  Burton,  VI,  188 


POPULAR   RATIFICATION    IN   BRITISH    PUBLIC   LAW         53 

he  caused  the  preparation  of  a  counter  instrument  which  was  to  be 
styled  the  "  King's  Covenant,"  and  which  differed  from  the  National 
Covenant  mainly  in  its  practical  annulment  of  the  latter.  "For 
some  time,  therefore,"  observes  Brown,1  "the  singular  spectacle  was 
seen  of  the  two  Covenants  in  rivalry  for  the  suffrages  of  the  people." 
But  this  new  partner  of  the  king's  rule  could  not  thus  easily  be 
swerved  from  its  convictions  or  misled  by  stratagem.  "Outside  of 
Aberdeen  his  covenant  received  little  support,  and  it  only  kept  alive 
the  suspicions  which  his  tardy  concessions  might  have  done  some- 
thing to  allay."  2 

Nevertheless,  while  this  device  of  the  king  failed  of  its  purpose,  it 
is  an  important  landmark  in  constitutional  history.  Just  as  the 
National  Covenant  is  probably  the  first  example  of  practically  an 
entire  nation  subscribing  to  a  written  compact,  so  this  counter  move- 
ment started  by  the  king  is  the  earliest  formal  recognition  by  a 
sovereign  of  the  importance  —  not  to  say  necessity  —  of  inviting  the 
popular  ratification  of  such  a  compact.  The  cause  of  democracy 
and  the  doctrine  of  the  sovereignty  of  the  people  had  made  an  enor- 
mous advance  by  means  of  these  covenants  in  Scotland. 

B.   Church  Covenants  in  England 

While  the  Scotch  were  engaged  in  subscribing  their  Second 
National  Covenant,  Robert  Brown,  as  we  have  seen,3  was  organiz- 
ing his  church  at  Norwich.  Brown  himself  describes  the  method  of 
organization  hi  one  of  his  books,4  where,  speaking  of  his  flock,  he 
says,  inter  alia:  — 

"There  was  a  day  appointed  &  an  order  taken,  for  redresse  off  the  former 
abuses,  &  for  cleaning  to  the  Lord  in  greater  obediece.  so  a  covenat  was  made 
&  ther  mutual  cosent  was  geue  to  hould  to  gether. 

"  There  were  certaine  chief  pointes  proued  vnto  them  by  the  scriptures  all 
which  being  particular-lie  rehersed  vnto  them  with  exhortation  they  agreed  vpon 
them,  &  pronouced  their  agrement  to  ech  thing  particularlie,  saiing,  to  this  we 
geue  our  consent.  First  therefore  thei  gaue  their  consent,  to  ioine  themselues 

1  "History  of  Scotland,"  II,  306. 

3  Id.;   Baillie,  "Letters  and  Journals,"  I,  106,  107. 
8  Ante,  42. 

4  "A  True  and  Short  Declaration  both  of  the  Gathering  and  Joyning  Together 
of  Certain  Persons ;  and  also  of  the  Lamentable  Breach  and  Division  which  fell  amongst 
them."  —  Quoted  in  Burrage,  "The  Church  Covenant  Idea,"  46,  48. 


54  THE   PEOPLE'S   LAW 

to  the  Lord,  in  one  couenant  &  felloweshipp  together,  &  to  keep  &  seek  agrement 
vnder  his  lawes  &  government : " 

Here  we  have,  perhaps  for  the  first  time  in  England,1  the  doctrine 
of  common  assent  expressed  in  concrete  form  and  coupled  with  the 
idea  of  the  covenant  and  both  notions  applied  in  a  practical  way. 
About  a  dozen  years  later  a  covenant  appears  in  which  the  plan  of 
subscription  of  the  covenant  by  the  church  members  is  first  made 
prominent.  The  initial  paragraphs  are  as  follows:  — 

"Francis  Johnson  his  articles,  wch  he  vrged  to  be  vnder  written  by  the  En- 
glishe  Marchants  in  Middleboroughe  in  October  1591.  withstoode  by  me  Thomas 
Ferrers,  then  Deputie  of  the  Companie  there. 

"  Wee  whose  names  are  vnderwritten,  doe  beleeve  and  acknowledge  the  truthe 
of  the  Doctrine  and  faythe  of  our  Lorde  Jesus  Christe,  wch  is  revealed  vnto  vs 
in  the  Canon  of  the  Scriptures  of  the  olde  and  newe  Testament."  2 

Francis  Johnson  was  the  pastor  of  the  church  of  these  "English 
Marchants  in  Middleboroughe,"  and  in  commenting  on  the  " articles" 
he  says : — 

"That  for  anie  wch  haue  bene  of  this  Churche  and  will  not  vnder-write  these 
wth  promisse  (as  God  shall  inhable  them)  to  stande  to  the  forme  and  everie  poynte 
of  them,  againste  men  and  Angells  vnto  the  deathe;  otherwise  he  may  not  be 
receaved  as  a  member  in  this  Churche."3 

In  other  words,  " common  assent"  must  now  be  expressed  by 
subscription  to  the  covenant,  and  this  becomes  an  essential  step  in 
attaining  church  membership. 

From  this  time  on  the  adoption  of  covenants  by  the  English  dis- 
senting churches  becomes  common.  One  of  uncertain  date,  but  pur- 
porting to  be  of  1599  and  to  emanate  from  a  church  in  Lincolnshire, 
repeats  the  subscription  feature  above  mentioned.4  In  1602  the 
church  at  Gainsborough,  from  whose  bosom  afterward  came  the 
Mayflower  company,  declared :  — 

"We,  the  Lord's  free  people,  join  ourselves  by  a  covenant  of  the  Lord,  into 
a  church  estate  in  the  fellowship  of  the  Gospel,  to  walk  in  all  his  ways,  made 
known  or  to  be  made  known  unto  us,  according  to  our  best  endeavors."6 

1  Burrage,  48. 

2  Ms.  in  British  Museum,  quoted  by  Burrage,  49,  50. 

3  Id. 

4  Its  text  is  found  in  Burrage,  56.     Cf.  Dexter,  "John  Smyth,"  64. 

8  Quoted  by  Crocker  ("The  Unitarian  Church,"  15),  who  thus  comments: 
"  Several  very  important  facts  are  evident  at  a  glance :  (i)  Though  these  people  were  Cal- 
vinists,  they  did  not  make  their  Calvinistic  beliefs  the  basis  of  their  church  organiza- 


POPULAR   RATIFICATION    IN   BRITISH    PUBLIC   LAW         55 

In  London  what  has  been  called  "the  first  important  Independent 
church  on  English  soil  "  l  was  organized  by  this  formal  expression  of 
"common  assent " on  the  part  of  the  members.  "  Standing  together," 
says  Neal,2  "they  joined  hands,  and  solemnly  covenanted  with  each 
other,  in  the  presence  of  Almighty  God:  To  walk  together  in  all 
Gods  wayes  and  ordinances,  according  as  he  had  already  revealed,  or 
should  further  make  them  known  to  them." 

Thus  on  the  eve  of  the  Pilgrim  migration  to  the  New  World,  the 
idea  of  the  covenant  embodying  the  doctrine  of  "common  assent" 
had  become  well  established  among  a  considerable  section  of  the 
English  religious  community.  Let  us  now  turn  aside  to  follow  the 
introduction  of  these  ideas  into  the  troubled  English  political  world. 

C.   Puritan  "Associations"  and  Compacts 

At  the  beginning  of  the  Puritan  revolution  the  Parliamentary 
party  encouraged  the  forming  of  a  "bond  of  association"  among  its 
adherents.  The  plan  was  not  wholly  new  in  England.  Something 
of  the  sort  had  been  employed  during  the  reign  of  Elizabeth  as  a 
means  of  insuring  the  allegiance  of  her  subjects.3  The  purpose  now 
was  the  support  of  Parliament  in  its  contest  with  the  king  and  the 
defence  and  preservation  of  Protestantism  as  the  state  religion. 

tion  or  the  test  of  their  Christian  fellowship.  (2)  This  is  not  a  promise  to  believe  alike, 
but  a  promise  to  help  one  another  to  live  better ;  '  to  walk  together,'  not  to  think  alike, 
—  a  simple  and  spiritual  covenant,  not  a  creed ;  an  aspiration  of  the  soul,  not  a  theo- 
logical confession.  (3)  These  men  of  sturdy  faith  left  the  door  open  for  progress. 
The  anticipation  of  growth,  and  the  expectation  of  larger  wisdom,  speak  in  every 
phrase  of  these  covenants.  Here  we  find  the  guarantee  of  liberty  and  the  pledge  of 
growth." 

1  Burrage,  "The  Church  Covenant  Idea,"  79.     It  appears  to  have  been  the  mother 
of  "many  of  ye  Independant  and  Baptist  churches  in  London." — Id. 

2  "History  of  the  Puritans,"  I,  462. 

3  "  It  was  accorded  in  council  that  there  should  be  a  bond  of  union  made  by  such 
noblemen  and  other  principal  gentlemen  and  officers  as  should  like  thereof,  voluntarily 
to  bind  themselves  to  her  Majesty  and  every  one  to  other,  for  the  defence  of  her 
Majesty's   person   against   her   evil   willers."  —  Burghley  to    Lord    Cobham  (1584), 
quoted  in  Froude,  "History  of  England"  (New  York,  1873),  XII,  59. 

"Every  one  in  or  about  London  who  held  office  under  the  crown,  gave  their  sig- 
natures immediately,  and  copies  were  sent  round  the  English  counties  to  the  lords  lieu- 
tenants and  the  mayors  of  the  towns,  inviting  every  loyal  subject  to  enrol  his  name. 
The  country  replied  with  acclamations,  undisturbed  by  a  dissentient  voice.  The 
loyal  signed  in  a  passion  of  delight;  the  disloyal  because  they  dared  not  refuse."  — 
Id.  62. 


56  THE   PEOPLE'S   LAW 

We  have  seen  how  Norwich  and  the  county  of  Norfolk  were  the 
chief  recruiting  ground  of  the  Pilgrims.  It  and  the  adjacent  counties 
now  became  the  stronghold  of  Puritanism  and  remained  such  through- 
out the  war.  In  December,  1642,  Parliament  passed  an  ordinance 
for  the  forming  of  an  " Association"  by  these  counties.  The  deputy 
lieutenants  were  directed  to  convene  the  people  at  different  places 
and  explain  to  them 

"what  present  and  imminent  danger  and  necessity  the  whole  kingdom  is  now 
reduced  unto  by  the  wicked  advice,  attempts,  and  conspiracies  of  papists  and 
other  persons  now  about  His  Majesty.' ' * 

As  a  result  of  this  movement  the  following  compact  was  adopted : 

"Whereas  the  Lords  and  Commons  now  assembled  in  Parliament  have 
taken  into  their  consideration  that  in  these  times,  so  full  of  division  and  danger 
as  these  are,  an  union  of  our  hearts  and  forces  is  most  conducive  to  the  public 
good  and  safety  of  the  whole  kingdom  and  have  therefore  ordained  that  the  in- 
habitants of  the  counties  of  Essex,  Suffolk,  Norfolk,  Cambridge  and  Hertford- 
shire, together  with  the  isle  of  Ely  and  the  county  of  the  city  of  Norwich,  should 
enter  into  an  Association  with  one  another  for  the  maintenance  and  preservation 
of  the  peace  of  said  counties :  therefore,  in  pursuance  of  the  said  order  and  the 
better  to  form  a  mutual  confidence  in  one  another,  we  whose  names  are  hereunto 
subscribed  do  hereby  promise,  testify  and  declare  to  maintain  and  defend  with 
our  lives,  powers  and  estates,  the  peace  of  the  said  counties,  and  to  aid  and  assist 
one  another  under  the  command  and  conduct  of  such  person  as  now  hath  or  here- 
after shall  have,  by  the  authority  of  both  Houses  of  Parliament,  the  command  in 
chief  of  all  the  forces  of  the  said  counties,  according  to  the  true  intent  and  mean- 
ing of  the  said  Order  of  Association,  whereunto  we  do  most  willingly  give  our  as- 
sents, and  neither  for  hope,  fear  or  other  respect  shall  we  relinquish  this  promise. "  2 

In  this  we  find  the  same  idea  of  union  coupled  with  the  necessity 
of  obtaining  the  assent  of  all  parties  interested  which  is  so  prominent 
in  the  covenants.  But  this  has  more  the  character  of  a  civil  and 
military  and  less  that  of  an  ecclesiastical  compact.  We  shall  see 
compacts  much  like  this  adopted  at  the  outbreak  of  the  American 
Revolution. 

After  the  signing  of  this  instrument  steps  were  taken  to  bring  it 
before  those  not  present  at  the  time  of  its  adoption.  For  "it  was 
not  enough,"  says  Kingston,3  "that  the  counties,  through  their 
deputy-lieutenants  should  pledge  themselves ;  the  bond  of  unity,  to 
be  effectual,  must  rest  upon  the  common  sentiment  of  the  people." 

1  Kingston,  "East  Anglia  and  the  Great  Civil  War"  (London,  1897),  78. 
2  Id.  78,  79.  3  Id.  79. 


POPULAR   RATIFICATION    IN   BRITISH   PUBLIC   LAW         57 

Accordingly  printed  instructions  and  " Books  of  the  Association" 
in  large  numbers  were  distributed  in  the  counties,  meetings  were 
held,  addresses  made  and  opportunity  offered  for  joining  the  move- 
ment. Often  these  meetings  themselves  resulted  in  the  adoption  of 
compacts  modelled  upon  that  of  the  larger  " Association."  The  follow- 
ing received  the  signatures  of  some  forty  of  these  sturdy  yeomen :  — 

"Lavenham  in  Suffolk. 

"  Wee  whose  names  are  hereunder  written  doe  hereby  engage  our  selues  to 
prouide  Horses  and  Armes  and  to  maintaine  and  finde  att  our  owne  proper  Costs 
and  Charges  and  att  all  times  to  haue  in  a  Readiness  for  the  seruice  of  this  and 
those  Other  counties  now  Associated  together  by  the  Authority  of  Both  Howses 
of  Parliamentt:  soe  many  men  Compleaetly  Armed  and  Furnished,  and  such 
Horses,  geldings,  naggs  and  mares  as  we  have  seurally  Respectiuely  Subscribed, 
to  be  Comanded,  led  and  conducted  in  to  any  partes  and  places  within  the  said 
Countyes  by  such  person  as  now  hath  or  hereafter  shall  haue  Comand  in  cheiff 
of  all  the  Forces  of  the  said  Counties. 

"vid.   of  Essex   Suffolke,   Norffolke 
Cambredgsheir    and    Herteforde    Sheir 
together  with  the  Isle  of  Ely  and 
Cittie  of  Norwich."1 

So  at  Shimpling,  a  Suffolk  village  lying  a  few  miles  to  the  north- 
west, twenty-six  names  were  appended  to  an  instrument  with  the 
following  preamble :  — 

"These  whose  names  by  vs  are  heir  under  written  haue  giuen  ther  Consents 
to  Joine  in  th  asotiacion  accordinge  to  th  Booke  of  Directions  and  what  Armes 
they  will  Finde  as  Followethe."  2 

"Multiply  one  of  these  parishes,"  observes  Kingston,3  "by  four  or  five  hun- 
dred for  the  one  county  of  Suffolk,  and  again  by  four  or  five,  for  the  Associated 
Counties,  and  one  has  some  idea  of  what  the  common  sentiment  of  East  Anglia 
was  doing  for  Parliament  with  this  bond  of  association." 

Some  of  the  documents  of  this  period  approach  even  more  closely 
to  the  Scottish  covenants  in  terms.  Thus  about  the  time  of  the 
adoption  of  the  first  Associated  Counties  Compact,  noticed  above, 
representatives  of  the  counties  of  Cambridge,  Buckingham,  Bedford, 
and  Hertford  meet  and  subscribe  an  instrument  in  which  they 

"solemnly  protest  and  covenant  before  God  and  one  another  that  they  will  wil- 
lingly and  resolutely  sacrifice  their  lives  in  this  religious  and  just  quarrel,  and  that 

1  Tanner  Mss.  cclxxxiv,  f.  41 ;  Kingston,  82,  83. 

2  Id.  f.  45;   Id. 

8  "East  Anglia  and  the  Great  Civil  War"  (London,  1897),  85. 


58  THE   PEOPLE'S   LAW 

they  will  never  lay  down  their  arms  till  this  which  is  called  the  King's  Army  be 
dissolved."1 

The  "  Sacred  Vow  and  Covenant " 

It  was  not,  however,  until  Parliament  was  stirred  to  its  depths 
by  the  detection  of  the  Waller  conspiracy  in  the  king's  favor  in  1643, 
that  a  real  counterpart  of  the  Scottish  National  Covenant  appeared. 
Spurred  by  alarm  at  the  boldness  of  the  plot  and  the  necessity  of 
apprehending  all  who  might  be  implicated,  members  of  the  House 
of  Commons  prepared  an  instrument  which,  to  borrow  the  language 
of  the  great  Cavalier  historian,  the  Earl  of  Clarendon,2 

"for  the  rareness  of  it  both  in  title  and  style,  I  think  necessary  here  to  insert  in 
the  very  terms ;  which  were  these :  — 

"  'A  sacred  vow  and  covenant  taken  by  the  lords  and  commons  assembled 
in  parliament  upon  the  discovery  of  the  late  horrid  and  treacherous  design  for 
the  destruction  of  this  parliament  and  the  kingdom:  [the  6th  of  June  1643] 

"  'Whereas  there  hath  been,  and  now  is,  in  this  kingdom,  a  popish  and 
traitorous  plot  for  the  subversion  of  the  true  protestant  reformed  religion,  and 
the  liberty  of  the  subject;  and  in  pursuance  thereof  a  popish  army  hath  been 
raised,  and  is  now  on  foot  in  divers  parts  of  this  kingdom;  and  whereas  there 
hath  been  a  treacherous  and  horrid  design,  lately  discovered  by  the  great  blessing 
and  especial  providence  of  God,  of  divers  persons,  to  join  themselves  with  the 
armies  raised  by  the  king,  and  to  destroy  the  forces  raised  by  the  lords  and  com- 
mons in  parliament,  to  surprise  the  cities  of  London  and  Westminster,  with  the 
suburbs;  by  arms  to  force  the  parliament;  and  finding  by  constant  experience 
that  many  ways  of  force  and  treachery  are  continually  attempted  to  bring  to 
utter  ruin  and  destruction  the  parliament  and  kingdom,  and  that  which  is  dearest, 
the  true  protestant  religion ;  and  that,  for  the  preventing  and  withstanding  the 
same,  it  is  fit,  that  all  who  are  true  hearted,  and  lovers  of  their  country,  should 
bind  themselves  each  to  other  in  a  sacred  vow  and  covenant; 

"  'I  A.  B.  in  humility  and  reverence  of  the  Divine  Majesty,  declare  my 
hearty  sorrow  for  my  own  sins  and  the  sins  of  this  nation,  which  have  deserved 
the  calamities  and  judgments  that  now  lie  upon  it;  and  my  true  intention  is, 
by  God's  grace,  to  endeavour  the  amendment  of  my  own  ways.  And  I  do  farther, 
in  the  presence  of  Almighty  God,  declare,  vow,  and  covenant,  that,  in  order  to 
the  security  and  preservation  of  the  true  reformed  protestant  religion,  and  liberty 
of  the  subject,  I  will  not  consent  to  the  laying  down  of  arms,  so  long  as  the  papists, 
now  in  open  war  against  the  parliament,  shall  by  force  of  arms  be  protected  from 
the  justice  thereof:  and  that  I  do  abhor  and  detest  the  wicked  and  treacherous 
design  lately  discovered;  and  that  I  never  gave  nor  will  give  my  assent  to  the 
execution  thereof,  but  will,  according  to  my  power  and  vocation,  oppose  and 
resist  the  same,  and  all  other  of  the  like  nature.  And  in  case  any  other  like  design 

1  "Diurnal  Occurrences  in  Parliament,"  Kingston,  76,  77. 

2  "History  of  the  Rebellion  and  Civil  Wars"  (Oxford,  1849),  III,  54-56. 


POPULAR   RATIFICATION   IN   BRITISH    PUBLIC   LAW         59 

shall  hereafter  come  to  my  knowledge,  I  will  make  such  timely  discovery  as  I 
shall  conceive  may  best  conduce  to  the  preventing  thereof.  And  whereas  I  do 
in  my  conscience  believe  that  the  forces  raised  by  the  two  houses  of  parliament 
are  raised  and  continued  for  their  just  defence,  and  for  the  defence  of  the  true 
protestant  religion,  and  liberty  of  the  subject,  against  the  forces  raised  by  the 
king;  that  I  will,  according  to  my  power  and  vocation,  assist  the  forces  raised 
and  continued  by  both  houses  of  parliament,  against  the  forces  raised  by  the 
king  without  their  consent;  and  will  likewise  assist  all  other  persons  that  shall 
take  this  oath  in  what  they  shall  do  in  pursuance  thereof;  and  will  not,  directly 
or  indirectly,  adhere  unto,  nor  shall  willingly  assist,  the  forces  raised  by  the  king 
without  the  consent  of  both  houses  of  parliament.  And  this  vow  and  covenant 
I  make  in  the  presence  of  Almighty  God,  the  Searcher  of  all  hearts,  with  a  true 
intention  to  perform  the  same,  as  I  shall  answer  at  the  great  day,  when  the  secrets 
of  all  hearts  shall  be  disclosed.'" 

The  plan  of  submitting  this  document  was  hardly  less  compre- 
hensive than  that  pursued  with  the  Scottish  covenant  of  five  years 
before.  It  was  designed  "to  be  taken  by  the  members  of  both 
houses,  and  afterwards  by  the  city,  and  their  army."  l  How  far  this 
design  was  carried  out,  we  may  learn  from  Clarendon,  always  remem- 
bering that  his  view  as  to  the  extent  of  popular,  voluntary  acceptance 
was  obtained  through  hostile  eyes. 

"There  was  not  a  member  of  either  house,"  he  says,2  "that  took  it  not:  and 
being  thus  fettered  and  entangled  themselves,  they  sent  their  committee  into  the 
city,  to  acquaint  them  with  their  happy  discovery,  and  how  miraculously  God 
had  preserved  them,  and  to  engage  them  in  the  same  sacred  vow  and  covenant; 
which  was  readily  submitted  to;  and,  by  the  industry  of  their  clergy,  sooner 
than  can  be  imagined,  taken  throughout  that  people.  Then  it  was,  with  equal 
diligence  and  solemnity,  transmitted  to  the  army,  that  their  fears  of  inconven- 
ience from  thence  might  be  likewise  purged;  and  thence  it  grew  the  mark  of 
distinction,  to  know  their  friends  and  enemies  by;  and  whosoever  refused  to 
take  that  covenant  needed  no  other  charge  to  be  concluded  and  prosecuted  as 
the  highest  malignant." 

The  immediate  purpose  of  these  Puritan  documents  of  the  revolu- 
tionary period  was,  of  course,  mainly  military.  But  they  were  lead- 
ing to  constitutional  results  undreamed  of  by  their  framers.  They 
were  accustoming  the  people  to  joint  and  concerted  action,  taken 
with  the  assent  of  all,  at  least  pro  forma,  as  attested  by  a  solemn 
written  instrument  which  became  effective  when  signed  by  all.  In 
reading  these  documents  one  cannot  fail  to  be  impressed  with  their 
similarity  in  tone  and  phraseology  to  the  town  compacts  which  the 

1  "History  of  the  Rebellion  and  Civil  Wars"  (Oxford,  1849),  HI,  54-       3  Id.  56,  57. 


60  THE   PEOPLE'S   LAW 

coreligionists  of  these  Roundheads  were  at  that  moment  adopting 
and  living  under  across  the  sea.  Both  were  products  of  the  same 
fundamental  doctrines  of  Puritanism  and  both  embodied  the  germs 
and  underlying  ideas  of  the  popularly  ratified,  written  constitution. 

D.    The  Solemn  League  and  Covenant 

The  covenant  idea  had  now  received  a  practical  application  in 
the  political  life  of  the  kingdoms  on  each  side  of  the  Tweed.  An 
opportunity  soon  came  to  apply  it  to  both  jointly.  At  the  beginning 
of  the  Puritan  revolution  the  fortunes  of  war  seemed  to  be  rather 
against  the  parliamentary  party.  Fearing  continued  reverses  and 
eventual  defeat,  they  naturally  turned  for  aid  to  their  coreligionists 
of  the  north,  who,  like  themselves,  had  been  engaged  in  a  struggle 
with  the  king.  In  July,  1643,  before  the  echoes  of  the  "sacred  vow 
and  covenant"  had  died  away,  a  parliamentary  commission,  of  which 
Sir  Henry  Vane  the  Younger  was  the  leading  spirit,1  was  sent  to  Scot- 
land for  the  purpose  of  negotiating  a  formal  alliance.  The  matter 
was  taken  up  for  consideration  simultaneously  by  the  Convention  of 
the  Estates  of  Scotland  and  the  General  Assembly,  and  these  bodies 
followed  the  precedent  with  which  they  were  most  familiar.  Their 
reply  to  the  English  commissioners  was  a  proposal  for  a  covenant, 
and  they  tendered  an  instrument 2  which  was  mainly  a  renewal  of 
their  National  Covenant  of  1638.  This  hardly  met  the  ideas  of  the 
commissioners.  "The  English,"  observes  the  Scotch  chronicler 
Baillie,3  "  were  for  a  civil  league ;  we  for  a  religious  covenant."  But 
the  English  were  in  no  position  to  dictate.  Through  Vane's  efforts 
they  secured  the  addition  of  the  word  "League"  to  the  title  of  the 
instrument,  making  it  sound  more  like  their  own,  and  the  insertion 
of  a  phrase  which  they  construed  as  committing  them  less  strongly 
to  the  Presbyterian  polity.  Even  these  apparently  unimportant 

1  Hosmer,  "Life  of  Young  Sir  Henry  Vane"  (Boston,  1888),  173. 

2  Hosmer  ("Life  of  Young  Sir  Henry  Vane,"  183)  says  that  it  was  drawn  by  Alex- 
ander Henderson,  presiding  officer  of  the  assembly,  "  the  ablest  and  noblest  of  the  Cove- 
nanters, the  greatest  name  in  the  Scotch  Kirk  since  the  time  of  John  Knox."     Bisset 
observes:  "These  clauses  (the  first  and  second)  were  evidently  drawn  with  care  by 
lawyers,  while  most  of  the  others  savour  strongly  of  the  Presbyterian  pulpit  of  that 
day."  —  "Omitted  Chapters  of  the  History  of  England"  (London,  1864),  I,  276,  note. 
The  instrument  as  finally  adopted  is  printed  in  full  in  Clarendon,  III,  216-219;  also 
in  Gardiner's  "Constitutional  Documents  of  the  Puritan  Revolution"  (Oxford,  1889), 
187 ;  and  in  Adams  &  Stephens'  "  Select  Documents  of  English  Constitutional  History" 
(New  York,  1901),  383. 

3  "Letters  and  Journals,"  374  et  seq. 


POPULAR   RATIFICATION   IN   BRITISH   PUBLIC   LAW        6l 

modifications  were  obtained  only  after  a  prolonged  debate,  and  the 
covenant  was  agreed  upon  with  the  understanding,  true  to  the  com- 
mon Calvinistic  creed  of  both  parties,  that  it  should  be  subscribed 
by  the  people,  not  only  of  Scotland  and  England,  but  of  Ireland  also. 
The  instrument  thus  produced  has  been  well  called  *  "one  of  the 
most  memorable  documents  in  the  history  of  the  English-speaking 
race."  It  was  entitled :  "  A  solemn  league  and  covenant  for  reforma- 
tion and  defence  of  religion,  the  honour  and  happiness  of  the  king  (sic) 
and  the  peace  and  safety  of  the  three  kingdoms  of  England,  Scotland 
and  Ireland." 2  But  it  is  noticeable  that  in  the  body  of  the  instrument 
it  purports  to  be,  not  a  covenant  of  the  three  kingdoms  but  of  the 
people  thereof.  It  recites  that 3 

"We  noblemen,  barons,  knights,  gentlemen,  citizens,  burgesses,  ministers 
of  the  gospel,  and  commons  of  all  sorts  in  the  kingdoms  of  England,  Scotland 
and  Ireland  .  .  .  have  now  at  last  .  .  .  after  mature  deliberation,  resolved 
and  determined  to  enter  into  a  mutual  and  solemn  league  and  covenant  wherein 
we  all  subscribe,  and  each  one  of  us  for  himself,  with  our  hands  lifted  up  to  the 
most  high  God,  do  swear,"  etc. 

The  manner  of  adopting  the  instrument  was,  in  form  at  least, 
quite  consistent  with  these  recitals.  In  Scotland  steps  were  taken  to 
obtain  the  subscription  of  the  people  as  in  the  case  of  former  cove- 
nants. In  England,  after  being  signed  by  members  of  Parliament, 
the  process  is  thus  described  by  Clarendon : 4  — 

"  And  they  (the  Commons)  farther  made  a  special  order  that  all  the  ministers 
of  parish -churches  within  London  and  Westminster,  the  suburbs,  and  the  whole 
line  of  communication,  should  read  and  explain  the  covenant  to  their  several 
congregations,  and  stir  them  up,  the  next  fast  day,  to  the  cheerful  taking  of  it: 
and  particular  care  was  taken,  that  all  the  students  of  the  inns  of  court  should 
be  persuaded  to  receive  it.  But,  over  and  above  these  general  directions,  there 
was  a  particular  ceremony  and  application  to  recommend  this  covenant  to  the  city 
and  corporation  of  London." 

"In  February,  1644, 

"the  covenant  was  ordered  to  be  taken  throughout  the  kingdom  of  England  by 
all  persons  above  age  of  eighteen  years;  and  the  assembly  were  commanded  to 
draw  up  an  exhortation  to  dispose  people  to  it.' ' 5 

1  Hosmer,  "Life  of  Young  Sir  Henry  Vane,"  186. 

2  Clarendon,  "  History  of  the  Rebellion  and  Civil  Wars,"  III,  216. 

3  Id.  216,  217. 

*  Id.  220 ;   cf .  Burton,  "  History  of  Scotland,"  VI,  354  et  seq. 

6  Neal,  "History  of  the  Puritans"  (Parsons'  Ed.,  London,  1811),  II,  68,  69.  "It 
was  signed  by  many  in  every  county  of  England." — Hanna,  "The  Scotch-Irish" 
(New  York,  1902),  I,  450. 


62  THE   PEOPLE'S   LAW 

It  will  be  seen  that,  according  to  its  title,  the  covenant  was  to 
include  the  people  of  Ireland.  The  manner  of  submitting  it  there 
has  been  related  as  follows :  — 

"On  the  4th  of  November,  1643,  Owen  O'Connolloy  was  sent  by  Parlia- 
ment to  the  commanders  in  Ulster,  to  make  preparations  for  administering  the 
Covenant  in  Ireland.  For  this  purpose  the  Rev.  James  Hamilton  and  three 
other  clergymen  came  over  the  next  spring.  On  the  ist  of  April,  1644,  they 
presented  their  commissions  to  the  Presbytery,  and  soon  afterwards  began  the 
work  of  receiving  signatures.  The  regiments  took  the  Covenant  from  their 
own  chaplains,  or  if  they  had  none,  from  the  Scottish  commissioners.  Major 
Dalzell,  who  was  afterwards  noted  as  a  great  persecutor,  was  the  only  person 
connected  with  the  army  who  refused  to  swear.  Then  came  in  crowds  the  people 
near  the  places  where  the  regiments  were  stationed.  They  all  joined  willingly, 
except  a  few  Episcopal  ministers  and  some  'profane  and  ungodly  persons;  so 
that  there  were  more  of  the  country  become  swearers  than  were  men  in  the  army.' 
Those  who  had  taken  the  Black  Oath  were  compelled  to  renounce  it  publicly 
before  being  admitted  to  the  Covenant.  The  commissioners  appointed  went 
from  town  to  town  to  preach  and  explain  the  provisions  of  the  document  they 
carried.  Having  administered  it  in  several  places  in  Antrim  and  Down  where 
troops  were  stationed,  they  set  out  for  the  extreme  North.  'From  Ballymena 
they  went  with  a  guard  of  horse  toward  Coleraine,  under  one  William  Hume  of 
General  Leslie's  regiment.  They  went  the  next  day  (being  Thursday)  to  the 
Church,  and  few  being  present  except  the  soldiers  of  the  garrison,  they  explained 
the  Covenant  to  them,  and  left  it  to  their  serious  thoughts  till  the  next  Sabbath, 
being  also  Easter  day.  On  this  Lord's  day  the  convention  was  very  great  from 
town  and  country.  They  expounded  more  fully  the  Covenant,  and,  among 
other  things,  told  the  people  that  their  miseries  had  come  from  those  sorts  of 
people  who  were  there  sworn  against,  and  especially  from  the  Papists.'  ...  In 
this  manner  was  the  Covenant  taken  by  the  people  throughout  the  greater  part 
of  Ulster.  .  .  .  From  Coleraine  they  went  to  Deny,  and  from  Deny  to  the 
Presbyterian  parts  of  county  Donegal.  ...  In  Ulster  the  Covenant  was  taken 
by  about  sixteen  thousand  persons  besides  the  army."1 

But  these  subscribers  to  the  covenant  were  not  the  native  Irish. 
They  were  really  Scotchmen  who,  during  the  previous  generation, 
had  migrated  across  the  North  Channel  and  settled  in  the  fertile  lands 
of  Ulster.  These  colonists  were,  as  has  been  said  of  their  descendants 
in  America,  "  Protestants  of  the  Protestants"  2  —  sharers  in  the  great 
movement  led  by  Knox  and  Melville,  and  they  did  not  leave  Scotland 
until  after  two  of  its  famous  covenants  had  been  signed.  Indeed 
their  settlement  in  Ireland  was  part  of  a  scheme  "to  plant  the  coun- 
try with  Protestants."  3  In  the  early  years  of  the  seventeenth  cen- 

1  Hanna,  "The  Scotch-Irish"  (New  York,  1902),  I,  569,  570. 

2  Roosevelt,  "The  Winning  of  the  West"  (New  York,  1889),  I,  104. 

3  Hanna,  "The  Scotch-Irish,"  I,  498. 


POPULAR    RATIFICATION    IN    BRITISH  PUBLIC   LAW         63 

tury  two  influential  Scotchmen  obtained  an  extensive  grant  of  land 
from  an  Ulster  chief  l  and  later  a  much  larger  acreage  was  confiscated 
by  the  English  crown  from  rebellious  Irish  nobles.2  It  was  upon 
these  lands  that  the  Scotch  immigrants  were  settled.  Beginning  with 
1606  they  came  in  large  numbers,3  and  soon  succeeded  in  establishing 
a  busy  and  prosperous  colony.4  These*  were  the  people  who  sub- 
scribed to  the  Solemn  League  and  Covenant  in  1643,  and  these  were 
the  ancestors  of  the  sturdy  race  which,  in  the  succeeding  century, 
commenced  the  settlement  of  those  middle  and  southern  colonies  of 
America  where,  outside  of  New  England,  the  popular  ratification  of 
constitutions  began.  To  them  this  last  was  no  new  experience.  It 
was  like  the  renewal  of  a  covenant,  the  taking  of  which  in  their  ances- 
tral home  was  the  most  impressive  episode  in  their  history. 

It  has  been  objected  that  the  ratification  of  the  Solemn  League 
and  Covenant  was  "in  no  sense  an  approval," 5  because  provision  was 
made  for  enforcing  subscription.  It  is  true  that  in  Scotland  "it  was 
ordered  ...  to  be  sworn  to  and  subscribed  all  over  the  kingdom  on 
penalty  of  the  confiscation  of  goods  and  rents  and  such  other  punish- 
ment as  his  majesty  and  the  parliament  should  inflict  on  the  refusers."  6 
But  in  view  of  the  enthusiasm  with  which  the  National  Covenant 
(practically  the  same  instrument)  had  been  received  only  five  years 
earlier,  it  can  hardly  be  supposed  that  the  enforcement  of  the  provi- 
sions above  quoted  was  often  necessary.  Of  the  subscription  in 
England,  Neal  says : 7  — 

"It  is  certain  most  of  the  religious  part  of  the  nation  who  apprehended  the 
protestant  religion  in  danger,  and  were  desirous  of  reducing  the  hierarchy  of 
the  church,  were  zealous  for  the  Covenant.  Others  took  it  only  in  obedience  to 
the  parliament,  being  sensible  of  the  distressed  circumstances  of  their  affairs, 
and  that  the  assistance  of  the  Scots  was  to  be  obtained  on  no  other  terms." 

In  Ireland  also  "it  was  given  only  to  those  'whose  consciences 
stirred  them  up,' "  8  and  the  historians  do  not  seem  to  mention  an 

1  Hanna,  "  The  Scotch-Irish,"  Chap.  XXXIII. 
3  Id.,  Chap.  XXXIV. 

3  Hanna  estimates  that  during  the   decade  ending  with  1618  "there  must  have 
been  an  immigration  from  Scotland  of  between  30,000  and  40,000."  —  Id.  I,  504. 

4  Id.,  502. 

8  Borgeaud,  "Rise  of  Modern  Democracy  in  Old  and  New  England"  (London, 
1894),  3- 

8  Neal,  "History  of  the  Puritans"  (Parsons'  Ed.,  London,  1811),  II,  68. 

7  Id.  69. 

8  Hanna,  "The  Scotch-Irish"  (New  York,  1902),  I,  570. 


64  THE  PEOPLE'S  LAW 

instance  in  any  of  the  three  countries  where  the  common  people  at 
least  were  coerced  into  signing. 

But  whether  everywhere  voluntarily  subscribed  or  not,  the  lasting 
result  of  this,  as  of  all  the  covenants,  was  the  recognition  of  the  people 
as  a  necessary  contracting  party  in  the  making  of  a  great  national 
compact.  "The  mere  fact,"  says  Borgeaud,1  "that  the  formal  adhe- 
sion of  the  people  was  considered  necessary,  showed  that  the  people 
were  about  to  gain  new  rights."  The  requirement  of  their  formal 
assent  was  a  long  step  toward  the  doctrine  that  no  such  instrument 
should  be  valid  until  it  should  receive  their  actual  assent. 

E.   "  The  Agreement  of  the  People" 

In  the  year  1648,  when  the  Puritan  movement  was  at  its  height, 
there  was  presented  to  the  House  of  Commons  an  instrument  which 
is  declared  by  an  eminent  writer  to  have  been  "in  all  substantial 
respects  a  draft  for  an  American  Constitution." 2  Another  has 
said :  — 

"It  was  a  real  constitutional  charter,  founded  on  the  direct  acceptance  of 
the  people,  and  placed  above  the  reach  of  the  representative  Assembly —  a  con- 
stitution in  the  sense  in  which  the  word  is  understood  by  the  democracies  of  the 
United  States  and  Switzerland  to-day.' ' 3 

This  was  the  famous  "Agreement  of  the  People."  4     It  was  prob- 

1  "Rise  of  Modern  Democracy  in  Old  and  New  England,"  30. 

2  Hosmer,  "Life  of  Young  Sir  Henry  Vane"  (Boston  and  New  York,  1888),  440. 

3  Borgeaud,  " Rise  of  Modern  Democracy  in  Old  and  New  England"  (London  and 
New  York,  1894),  43.     Cf.  Kidd,  "Principles  of  Western  Civilization"  (New  York, 
1902),  106.    The  former  also  says  (Id.  39):  "When  we  read  it  and  summarise  the  de- 
mands it  contains  we  are  astounded  to  find  that  it  is  nearly  two  centuries  and  a  half 
old.     The  principles  which  it  lays  down  are,  for  the  most  part,  the  very  principles 
which  contemporary  democracy  has  just  succeeded  in  establishing,  or  is  still  demand- 
ing.    The  sovereignty  of  the  people ;  supreme  power  vested  in  a  single  representative 
assembly ;   the  executive  entrusted  by  the  assembly  to  a  council  of  state,  elected  for 
the  term  of  one  legislature ;  biennial  parliaments ;   equitable  and  proportionate  distri- 
bution of  seats;   extension  of  the  right  of  voting  and  of  election  to  all  citizens  dwell- 
ing in  the  electoral   districts   who  are  of  full  age,  and  neither  hired  servants  nor  in 
the  receipt  of  relief;  the  toleration  of  all  forms  of  Christianity;  the  suppression  of 
state  interference  in  Church  government;    the  limitation  of  the  powers  of  the  repre- 
sentative assembly,  by  fundamental  laws  embodied  in  the  constitution,  especially 
with  regard  to  the  civil  liberties  guaranteed  to  citizens,  these  are  the  principles  pro- 
claimed by  the  English  democrats  in  January,  1648-9." 

4  It  is  printed  in  full  in  "The  Parliamentary  History  of  England"  (London,  1763), 
519  et  seq.;  also  in  Gardner's  "Constitutional  Documents  of  the  Puritan  Revolution" 
(Oxford,  1889),  270  et  seq. 


POPULAR    RATIFICATION    IN   BRITISH   PUBLIC   LAW         65 

ably  drawn  by  Henry  Ireton,  a  general  in  the  Puritan  army  and  a 
son-in-law  of  Oliver  Cromwell.  But  unlike  its  less  famous  successor, 
—  the  "Instrument  of  Government," — it  emanated  from  the  rank 
and  file  and  not  merely  from  a  junta  of  military  officers.1  The  "  Agree- 
ment" arid  its  reputed  author  have  been  thus  characterized  : 2  — 

"It  was  one  more  of  those  Army  papers  from  the  pen  of  this  lawyer-soldier, 
which  strike  us  yet  as  the  supreme  public  documents  of  their  time  for  weight, 
insight  and  constructive  ability.  The  army  .  .  .  was  the  nursery  of  all  that 
was  best  in  the  political  thought  of  England  at  that  day;  but  probably  the  most 
definite  doctrinaire,  the  most  inventive  political  thinker  of  the  formal  didactic 
kind,  in  the  whole  Army,  was  Commissary-General  Ireton.  One  knows  not 
how  far  he  had  hitherto  been  shaping  the  opinions  of  his  colleagues  to  his  own, 
or  how  far  he  had  permitted  theirs,  and  especially  Cromwell's,  to  shape  his." 

Accompanying  the  draft  of  this  instrument  was  a  petition  from 
the  army  in  which  the  Commons  were  asked :  — 

"That  according  to  the  method  propounded  therein,  it  may  be  tendered  to 
the  people  in  all  parts,  to  be  subscribed  by  those  that  are  willing,  as  petitions 
and  other  things  of  a  voluntary  nature  are,  and  that,  in  the  meanwhile,  the  ascer- 
taining of  these  circumstances,  which  are  referred  to  commissioners  in  several 
counties,  may  be  proceeded  upon  in  a  way  preparatory  to  the  practice  of  it ;  and 
if  upon  the  account  of  subscriptions  (to  be  returned  by  those  commissioners  in 
April  next),  there  appears  a  general  or  common  reception  of  it  amongst  the  people, 
or  by  the  well  affected  of  them,  and  such  as  are  not  obnoxious  for  Delinquency, 
it  may  then  take  place  and  effect,  according  to  the  tenour  and  substance  of  it.' ' ' 

Here,  then,  we  have  not  only  a  proposed  written  constitution  but 
a  distinct  recognition  of  the  need  of  its  popular  ratification,  and  a 
provision  therefor  according  to  the  mode  of  adopting  a  covenant. 

F.   Vane's  Proposal  for  a  Constitutional  Convention 

Eight  years  after  the  "Agreement  of  the  People"  was  framed, 
and  when  the  Puritan  party  had  begun  to  dissolve,  Sir  Henry  Vane 
the  Younger,  who  will  be  remembered  as  one  of  the  framers  of  the 
Solemn  League  and  Covenant  of  1643,  put  forth  a  work  in  which 

1  "A  large  part  of   both  officers  and  the  soldiers  were  republicans,  and  many 
adopted  ultra-democratic  theories."  —  Osgood,  "The  Political  Ideas  of  the  Puritans," 
Political  Science  Quarterly,  VI,  219. 

2  Masson,  "The  Life  of  Milton  in  Connexion  with  the  History  of  his  Time,"  IV, 
10.     Others  have  ascribed  to  John  Lilburne  the  principal  share  in  the  authorship  of 
the  "Agreement."  —  Foster,  "Commentaries  on  the  Constitution,"  49. 

3  "The  Parliamentary  History  of  England"  (London,  1763),  519. 


66  THE   PEOPLE'S   LAW 

he  thought  to  save  political  Puritanism  in  England  from  impending 
disaster,  through  a  plan  which  appears  to  have  included  the  idea  of 
popular  ratification.  He  proposes  a  new  form  of  government  and 
urges  that  "a  restraint  be  laid  upon  the  supreme  power  before  it  be 
erected,  in  the  form  of  a  fundamental  constitution."  How  this  was 
to  be  brought  about  shall  be  told  further  in  his  own  words :  — 

"The  most  natural  way  for  which  would  seem  to  be  by  a  general  council  or 
convention  of  faithful,  honest,  and  discerning  men,  chosen  for  that  purpose  by 
the  free  consent  of  the  whole  body,  ...  by  order  from  the  present  ruling  power, 
considered  as  general  of  the  army.  Which  convention  is  not  properly  to  exercise 
the  legislative  power,  but  only  to  debate  freely  and  agree  upon  the  particulars 
that,  by  way  of  fundamental  constitutions,  shall  be  laid  and  inviolably  observed, 
as  the  conditions  upon  which  the  whole  body  so  represented  doth  consent  to  cast 
itself  into  a  civil  and  politic  incorporation.  .  .  .  Which  conditions  so  agreed 
.  .  .  will  be  without  danger  of  being  broken  or  departed  from,  considering  of 
what  it  is  they  are  conditions,  and  the  nature  of  the  convention  wherein  they  are 
made,  which  is  of  the  People  represented  in  their  highest  state  of  sovereignty, 
as  they  have  the  sword  in  their  hands  unsubjected  unto  the  rules  of  civil  govern- 
ment, but  what  themselves,  orderly  assembled  for  that  purpose,  do  think  fit  to 
make."1 

The  constitutional  convention,  "  chosen  for  that  purpose  by  the 
free  consent  of  the  whole  body,"  and  designed  "not  properly  to 
exercise  the  legislative  power  but  only  to  debate  freely  and  agree 
upon  the  particulars"  etc.,  is  generally  supposed  to  mark  the  acme 
of  American  constitutional  development  and  to  represent  our  highest 
contribution  to  political  science.  Professor  Dicey  2  says :  — 

"The  constitutional  convention  ...  is  by  far  the  most  valuable  result  of 
American  inventiveness." 

But  here  was  the  idea,  developed  and  presented  in  almost  its 
modern  form,  by  this  Puritan  statesman  of  two  centuries  and  a  half 
ago.  Truly  the  England  of  the  seventeenth  century  seems  to  have 
been  on  the  verge  of  reviving  the  ancient  law-making  privileges  of  its 
people.  Had  Puritanism  continued  in  power  what  might  not  have 
resulted  in  this  direction ! 

A  survey  of  popular  ratification  in  the  British  Isles  during  the 
period  since  the  Reformation  demonstrates  clearly  enough  that  the 
immediate  source  of  it  was  the  Calvinistic  doctrine  of  common  assent. 

1  "A  Healing  Question  Propounded  and  Resolved"  (1656). 

2  Contemporary  Review,  LVII,  511. 


POPULAR   RATIFICATION   IN    BRITISH   PUBLIC   LAW        6/ 

Apart  from  the  Calvinists  it  had  practically  no  advocates,  and  while 
they  were  in  control  the  idea  was  introduced,  or  rather  revived,  in 
the  affairs  of  state.  But  near  as  it  sometimes  appeared  to  realiza- 
tion and  reestablishment,  it  always  fell  short  of  the  results  reached, 
even  during  the  same  period,  in  the  Puritan  commonwealths  of  the 
New  World.  From  there,  moreover,  came  not  a  little  of  the  inspira- 
tion for  whatever  measure  of  success  the  movement  attained  in  the 
mother  country.  It  was  no  accident  that  Sir  Henry  Vane  the  Younger 
figured  so  prominently  in  connection  with  two  of  these  important  con- 
stitutional documents  of  the  Puritan  revolution.  Of  his  part  in  these 
it  might  well  have  been  said  (as  it  was  concerning  his  selection  for 
another  sendee)  that  it  was  due  to  his  "having  had  a  good  part  of 
his  breeding  under  the  holy  ministers  of  New  England."  l  Vane  had 
been  governor  of  Massachusetts  Bay  in  the  period  of  its  infancy,  and 
it  was  largely  his  experience  there  that  he  sought  to  apply  in  Eng- 
land. So  Vane's  "kindred  spirit,"2  Roger  Williams,  brought  back 
to  the  mother  country  the  results  of  his  career  in  Rhode  Island  with 
its  fruitful  experiments  in  constitution-making. 

Popular  ratification  in  Great  Britain  was  thus,  in  part  at  least, 
the  consequence  of  a  reaction  from  the  colonies.  Conditions  there 
were  more  favorable  to  its  full  development,3  and  for  the  working 
out  of  its  results  we  must  follow  it  with  the  English  Puritan  to  New 
England  and  with  the  Scotch  Presbyterian  to  the  southern  colonies. 

1  From  the  "  Mercurius  Aulicus,"  a  publication  of  the  time,  which  gave  this  as  a 
reason  for  choosing  Vane  as  a  coadjutor  of  the  Earl  of  Essex  in  commanding  the  Puritan 
army.     See  Hosmer's  "Vane,"  163. 

2  Id.  66. 

3  "It  was  to  be  expected  that  tradition  and  long-established  institutions  would 
in  the  older  country  prevent  the  general  acceptance  of  theories  which  in  the  colonies 
could  be  put  into  practice  almost  without  resistance."  —  Osgood,   "The  Political 
Ideas  of  the  Puritans,"  Political  Science  Quarterly,  VI,  Pt.  II,  215. 


CHAPTER  VII 
POPULAR  RATIFICATION  IN  COLONIAL  AMERICA 

NEW   ENGLAND 

A .  Massachusetts 

i.     The  Colony  of  New  Plymouth 

A  STRONG  peculiarity  of  the  New  England  colonies  was  the  fact 
that  their  settlements  were  made  by  organized  bodies  rather  than,  as 
elsewhere,  by  individuals  or  unorganized  groups  of  individuals.  In 
many  instances  the  New  England  colony  was  simply  the  transplanta- 
tion of  a  Puritan  church  from  the  Old  World  to  the  New.  Such  was 
the  case  with  New  Plymouth.  At  the  time  of  its  foundation  the 
body  which  formed  the  colony  had  enjoyed  a  distinct  and  continuous 
existence  for  nearly  a  score  of  years.  It  had  originally  been 
organized  as  a  Puritan  congregation  at  the  hamlet  of  Scrooby 
in  Nottinghamshire,  from  some  remnant  of  the  old  Brownist  or 
Separatist  movement  of  the  preceding  century.1  In  1606  it  had 
called  as  its  junior  pastor  John  Robinson,  who  had  been  in 
charge  of  the  English  church  near  Norwich,2  and  who,  like  Brown, 
may  be,  therefore,  supposed  to  have  been  somewhat  under  the  peculiar 
spell  and  influence  exercised  by  that  ancient  centre  of  guild  life.  In 
1608,  after  several  unsuccessful  attempts,  Robinson  and  his  flock 
migrated  to  Holland,  where  circumstances  held  them  for  the  next 
dozen  years.  Their  sojourn  here  they  never  regarded  as  more  than 
temporary,  and  they  were  continually  planning  a  settlement  in  some 
other  part  of  the  world  where  they  might  be  free  from  undesirable 
influences  and  find  an  opportunity  to  propagate  their  faith.3  They 
applied  to  the  English  Virginia  company  for  leave  to  settle  in  its 

1  Goodwin,  "The  Pilgrim  Republic"  (Boston,  1888),  16. 
2  Id.  26.  3  Id.  38,  39. 

68 


POPULAR   RATIFICATION    IN   COLONIAL  AMERICA  69 

territory,   and   their    application,   drawn   by   Robinson   and    Elder 
Brewster,  strikingly  reveals  the  character  of  their  organization. 

"We  are  knite  togeather,"  it  recites,  "as  a  body  in  a  moste  stricte  &  sacred 
bonde  and  covenante  of  the  Lord,  of  the  violation  whereof  we  make  great  con- 
science, and  by  vertue  whereof  we  doe  hould  our  selves  straitly  tied  to  all  care 
of  each  others  Good,  and  of  ye  whole  by  every  one  and  so  mutually."  l 

Primarily,  then,  this  was  a  spiritual  organization  united  by  a  cove- 
nant. Whatever  functions  it  afterward  acquired  were  incidental  to  a 
promotion  of  its  religious  objects.  An  appreciation  of  this  fact  is 
essential  to  an  understanding  of  the  later  constitutional  history  of 
New  England  and,  indeed,  of  America. 

"The  church  at  Leyden,"  says  Osgood,2  "when  it  opened  negotiations  with 
the  Virginia  company  respecting  a  place  of  settlement,  added  to  its  religious 
functions  the  character  of  a  business  corporation.  It  sent  agents  to  England  to 
represent  its  interests  there.  Robinson  himself  was  commissioned  by  it  to  nego- 
tiate with  the  Dutch  West  India  Company.  The  reports  of  these  agents  were 
received  and  acted  on  by  the  church, —  the  same  body,  organized  in  the  same 
way,  as  that  which  met  for  worship  on  the  Sabbath.  When  they  had  resolved 
to  migrate  to  New  England,  this  congregation  formed  a  joint  stock  company  with 
the  merchant  adventurers  at  London." 

The  Mayflower  Compact 

When  this  Pilgrim  church  finally  embarked  for  the  New  World,  it 
happened  that  there  were  fellow-passengers  who  were  not  of  the 
same  congregation.  Moreover  the  region  in  which  they  found  them- 
selves at  the  end  of  their  voyage  was  not  included  in  their  patent  and 
the  latter  could  not,  therefore,  provide  for  their  civil  government. 
In  this  emergency  they  followed  precedent  and  tradition.  They 
framed  a  new  covenant,  differing  from  the  ordinary  church  instru- 
ment of  that  name  chiefly  in  its  provisions  for  civil  affairs,3  and  to 
this  they  required  the  assent  not  only  of  the  members  of  their  own 
congregation  but  also  that  of  the  outsiders  who  had  accompanied 
them,  thus  consciously  or  unconsciously  following  the  model  of  the 
old  guilds  to  which  they  have  been  compared.4  This  was  the  famous 

1  Bradford,  " History  of  the  Plimouth  Plantation"  (Dearie's  Ed.,  Boston,  1856),  32. 

2  "The  Political  Ideas  of  the  Puritans,"  Political  Science  Quarterly,  VI,  Pt.  I,  16. 
8  "To  this  organization  for  religious  and  mercantile  objects,  political  functions 

were  added  when  the  compact  was  signed  in  the  cabin  of  the  Mayflower."  —  Osgood, 
Id. 

4  Borgeaud,  "The  Rise  of  Modern  Democracy  in  Old  and  New  England"  (London, 
1894),  113. 


70  THE   PEOPLE'S   LAW 

"  Mayflower  agreement,"  —  one  (though  by  no  means  the  first  or  last) 
of  the  ancestral  documents  in  the  genealogical  line  of  our  American 
constitutions  and  one  whose  importance  warrants  its  incorporation 
here :  — 

"In  ye  name  of  God  Amen!  We  whose  names  are  under-writen,  the  loyall 
subjects  of  our  dread  soveraigne  Lord,  King  James,  by  ye  grace  of  God,  of  Great 
Britaine,  France,  &  Ireland  king,  defender  of  ye  faith,  &c,  haveing  undertaken 
for  ye  glorie  of  God  and  advancemente  of  ye  Christian  faith,  and  honour  of  our 
king  and  countrie,  a  voyage  to  plant  ye  first  colonie  in  ye  Northerne  parts  of  Vir- 
ginia, doe  by  these  presents  solemnly  and  mutually  in  ye  presence  of  God,  and 
one  of  another,  covenant  and  combine  our  selves  togeather  into  a  civill  body  poli- 
tick, for  our  better  ordering  and  preservation  and  furtherance  of  ye  ends  afore- 
said; and  by  vertue  hearof  to  enacte,  constitute,  and  frame  such  just  and  equall 
lawes,  ordinances,  acts,  constitutions,  and  offices  from  time  to  time,  as  shall  be 
thought  most  meete  and  convenient  for  ye  generall  good  of  ye  Colonie,  unto  which 
we  promise  all  due  submission  and  obedience. 

"  In  witness  whereof  we  have  hereunder  subscribed  our  names  Cap-Codd  ye 
ii  of  November,  in  ye  year  of  ye  raigne  of  our  soveraigne  lord,  King  James,  of 
England,  and  France,  &  Ireland  ye  eighteenth,  and  of  Scotland  ye  fiftie-fourth. 
An0.  Dom.  1620."  x 

It  was  formerly  the  fashion  to  regard  this  Mayflower  document  as 
isolated  —  sui  generis.  "This,"  says  Bancroft,  "was  the  birth  of 
popular  constitutional  liberty."  2 

So  John  Quincy  Adams  declared :  — 

"This  is  perhaps  the  only  instance  in  human  history  of  that  positive,  original 
social  compact  which  speculative  philosophers  have  imagined  as  the  only  legiti- 
mate source  of  government.  Here  was  a  unanimous  and  personal  assent  by  all 
the  individuals  of  the  community  to  the  association,  by  which  they  became  a  nation.' ' ! 

In  truth,  however,  as  we  have  already  seen,  these  Mayflower  emi- 
grants were  doing  nothing  novel  or  unprecedented.  They  were 
simply  applying  the  doctrine  of  "common  assent,"  already  a  cen- 
tury old  in  Puritanism,  in  vogue  for  generations  among  the  guilds,  if 
not  indeed  previously  practised  for  ages  by  the  Teutonic  ancestors  of 
these  Pilgrims.  The  occasion  and  after  events  made  this  Mayflower 
compact  a  conspicuous  instance.  It  was,  however,  only  an  instance, 
which  familiarity  with  preceding  history  shows  to  have  been  a  per- 
fectly natural  one,  and  as  it  was  not  the  first  so  it  was  also  not  the 
last.  It  led  naturally  to  others. 

1  The  text  here  followed  is  that  of  Goodwin,  "The  Pilgrim  Republic"  (Boston, 
,  63,  64. 

2  "History  of  the  United  States"  (London,  1876),  I,  244.     But  cf.  infra,  p.  90. 

3  Quoted  in  Goodwin,  "The  Pilgrim  Republic"  (Boston,  1888),  65. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA  71 

Law-making  in  New  Plymouth 

We  have  seen  that  the  organization  which  founded  New  Plymouth 
was  a  Puritan  church.  For  a  long  tune  it  retained  that  character. 

"That  part  of  the  church  of  Leyden  which  migrated  to  America,"  says  Os- 
good,1  "  became  a  state,  which,  though  it  recognized  the  supremacy  of  the  King, 
was  for  all  immediate  purposes  independent.  That  state  was  formed  precisely 
upon  the  model  of  the  church ;  it  was  the  politically  active  congregation.  Both 
were  expressly  based  on  compact,  or  mutual  consent;  both  were  pure  democra- 
cies." 

Hence  when  the  colony  came  to  make  its  laws,  it  made  them  just 
as  a  Puritan  congregation  would,  —  by  applying  the  doctrine  of 
"common  assent."  During  the  first  few  years  of  its  existence,  the 
colony  lived  by  a  sort  of  general  consent  under  the  Mayflower  in- 
strument and  the  English  common  law.2  In  1636  the  following 
compact  was  made :  — 

"Wee  the  Associates  of  New  Plymouth  coming  hether  as  free  borne  Subjects 
of  the  State  of  England  In  do  wed  with  all  and  singulare  the  privilidges  belonging 
to  such  being  Assembled  Doe  ordeine  constitute  and  enacte  that  noe  acte  Impo- 
sition law  or  ordinance  bee  made  or  Imposed  vpon  vs  att  prsent  or  to  come  but 
such  as  shalbee  made  and  Imposed  by  consent  of  the  body  of  the  Associates  or 
tbeire  Representatives  legally  assembled,  which  is  according  to  the  free  liberties 
of  the  State  of  England."  3 

In  the  same  year,  Elder  Brewster  and  the  pastor  and  certain  of 
the  deacons  of  the  church  were  appointed  as  a  sort  of  commission 
to  prepare  a  code  of  laws.4  They  proceeded  to  reaffirm  the  May- 
flower "combination"  and  declared:5  — 

"That  according  to  the  due  priviledge  of  the  subject  aforesaid  no  imposicon 
law  or  ordnance  be  made  or  imposed  vpon  vs  by  ourselves  [or  others  at]  present 
or  to  come  but  such  as  shall  be  made  [or]  imposed  by  consent  according  to  the 
free  liberties  [of  the]  State  Kingdome  of  Engl.  no  otherwise." 

1  "  The  Political  Ideas  of  the  Puritans,"  Political  Science  Quarterly,  VI,  16.    "  There 
was  a  state  without  king  or  nobles;  ...  a  church  without  a  bishop  ...  a  people 
governed  by  grave  magistrates  which  it  had  selected  and  equal  laws  which  it  had 
framed." — Rufus  Choate,    "Speech  before  the  New  England  Society"  (New  York, 
Dec.  22,  1843). 

"It  (Calvinism)  established  a  religion  without  a  prelate;  a  government  without  a 
king."  —  Bancroft,  "History  of  the  United  States,"  III,  Chap.  VI. 

2  Goodwin,  "The  Pilgrim  Republic,"  402. 

8  "Records  of  the  Colony  of  New  Plymouth"  (edited  by  Pulsifer),  XI,  78. 

4  Goodwin,  "The  Pilgrim  Republic,"  401. 

5  "Records  of  the  Colony  of  New  Plymouth,"  XI,  6. 


72  THE  PEOPLE'S   LAW 

It  was  also  enacted l  — 

"That  the  lawes  and  ordinance  of  the  Colony  &  for  the  Governmt  of  the  same 
be  made  onely  by  the  ffreemen  of  the  Corporacon  and  no  other." 

By  1638  the  same  conditions,  which  in  Old  England  and  else- 
where had,  as  we  have  seen,  operated  partly  at  least  to  displace  by 
the  delegate  system  the  practice  of  popular  legislation,  were  at  work 
in  New  Plymouth.  Nevertheless,  although  the  delegate  plan  was 
introduced,  the  idea  of  popular  ratification  was  retained.  In  the  year 
last  named  the  General  Court,  which  meant  the  entire  body  of  male 
inhabitants,  passed  the  following  act:  — 

"Whereas  complaint  was  made  that  the  ffreemen  were  put  to  many  incon- 
veniences and  great  expences  by  their  continuall  attendance  at  the  Courte  It  is 
therefore  enacted  by  the  Court  for  the  ease  of  the  seuall  Colonies  and  Townes 
within  the  goument  That  euery  Towne  shall  make  choyce  of  two  of  their  ffreemen 
and  the  Towne  of  Plymouth  of  foure  to  be  Committees  or  Deputies  to  joyne  with 
the  Bench  to  enact  and  make  all  such  lawes  and  ordinances  as  shalbe  judged  to 
be  good  and  wholesome  for  the  whole  Prouided  that  the  lawes  they  doe  enacte 
shalbe  ppounded  one  Court  to  be  considered  vpon  vntill  the  next  Court,  and  then 
to  be  confirmed  if  they  shalbe  approued  of  (except  the  case  require  prsent  con- 
firmacion)  And  if  any  act  shalbe  confirmed  by  the  Bench  and  Committees  wch 
vpon  further  deliberacon  shall  proue  prjudiciall  to  the  whole  That  the  ffremen 
at  the  next  eleccon  Court  after  meeting  together  may  repeale  the  same  and  enact 
any  other  vsefull  for  the  whole  And  that  euery  Towneship  shall  beare  their  com- 
mittees charges  and  that  such  as  are  not  ffreemen  but  have  taken  the  Oath  of 
fidelitie  and  are  masters  of  famylies  and  Inhabitante  of  the  said  Townes  as  they 
are  to  heare  their  pt  in  the  charges  of  their  Committees  so  to  haue  a  vote  in  the 
choyce  of  them,  pvided  they  choose  them  onely  of  the  ffreemen  of  the  said  Towne 
whereof  they  are:  but  if  any  such  comittees  shalbe  insufficient  or  troublesome 
that  then  the  Bench  and  thother  comittees  may  dismiss  them  and  the  Towne  to 
choose  other  ffreem  in  their  place."  2 

The  delegate  system  does  not,  however,  seem  to  have  worked 
altogether  satisfactorily,  and  there  was  at  least  a  temporary  and  par- 
tial return  to  the  old  method.  In  the  proceedings  of  the  General 
Court  for  1646  appears  the  following : 3  — 

"Whereas  the  Townes  formerly  were  to  send  their  deputies  (wch  must  arise 
out  of  there  free  men)  to  attend  the  3  generall  Courte  of  the  yeare  for  our  Sov- 
eraigne  Lord  the  Kinge,  now  vpon  the  speciall  complain te  of  the  deputies  of  the 
Townes  soe  sent  professinge  them  to  be  oppressed  thereby,  It  is  ordered  enacted 
that  the  whole  body  of  free  men  appeare  at  the  Election  Courte  wch  is  the  first 
tuesday  in  June  excessiuely,  there  to  make  or  repeale  such  lawes,  orders,  ordinance 

1  "Records  of  the  Colony  of  New  Plymouth"  (edited  by  Pulsifer,  Boston,  1861), 
XI,  ii.  3  Id.  31.  3  Id.  54. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA  73 

as  shalbe  fownde  meet  wholesome  for  the  orderinge  of  the  Goument  that  then  also 
they  present  such  deputies  as  haue  bene  chosen  by  their  Townes  accordinge  to  order 
formerly  established,  who  are  to  attend  the  same,  its  seuerall  adjourmte  as  the 
occasions  of  the  Country  shall  require,  that  whatsoever  laws,  orders,  ordinances 
shall  be  made  or  repealed  be  at  that  Courte  the  seuerall  adjourmte  thereof  onely 
done,  the  other  Courte  to  attend  onely  matters  of  Judicature  the  magistrates  onely 
to  attend  the  same." 

2.     The  Colony  of  Massachusetts  Bay 

Unlike  New  Plymouth,  its  predecessor,  the  colony  of  Massachu- 
setts Bay  was,  as  we  have  seen,  a  trading  corporation,  organized  on 
the  model  of  the  mediaeval  guilds.  The  ultimate  objects  of  the  com- 
pany were,  however,  religious,  and  a  section  of  it,  which  afterward 
settled  at  Dorchester,  was  organized  as  a  church  before  leaving  Eng- 
land.1 And  while  this  colony  may  have  been  less  democratic  2  than 
New  Plymouth,  whose  nucleus  was  the  Pilgrim  congregation,  still  the 
guild  organization  coupled  with  the  Puritan  doctrines  combined  to 
produce  important  results  in  the  way  of  popular  legislation.  The 
first  charter  of  the  colony  was  in  the  king's  name  and  nominally 
issued  from  the  crown,  but  its  provisions  were  drafted  by  the  original 
members.3  Among  these  provisions  was  the  following : 4  — 

"That  the  Governor,  or,  in  his  absence,  the  Deputie  Governor,  of  the  saide 
Company  for  the  tyme  being,  and  such  of  the  Assistant  and  freemen  of  the  saide 
Company  as  shalbe  present  or  the  greater  nomber  of  them  soe  assembled,  whereof 
the  Governor  or  Deputie  Governor  and  six  of  the  Assistants,  at  the  least  to  be 
seaven,  shall  have  full  power  and  authoritie  to  choose,  nominate,  and  appointe 
such  and  soe  many  others  as  they  shall  thinke  fitt,  and  that  shall  be  willing  to 
accept  the  same,  to  be  free  of  the  said  Company  and  Body,  and  them  into  the 
same  to  admitt,  and  to  elect  and  constitute  such  offices  as  they  shall  thinke  fitt 
and  requisite  for  the  ordering,  managing,  and  dispatching  of  the  affaires  of  the 
saide  Governor  and  Company  and  their  successors,  And  to  make  Lawes  and 
ordinances  for  the  good  and  welfare  of  the  saide  Company,  and  for  the  government 
and  ordering  of  the  saide  lands  and  plantacon,  and  the  people  inhabiting  and  to 
inhabite  the  same,  as  to  them  from  tyme  to  tyme  shal  be  thought  meete.  Soe  as 
such  lawes  and  ordinances  be  not  contrairie  or  repugnant  to  the  lawes  and  statutes 
of  this  our  realme  of  England." 

1  Burrage,  "The  Church  Covenant  Idea,"  87. 

2  Borgeaud,  "Rise  of  Modern  Democracy  in  Old  and  New  England"  (London, 
1894),  142  et  seq. 

3  Parker,  "  The  First  Charter  and  the  Early  Religious  Legislation  of  Massachusetts," 
Lowell  Institute  Lectures,  362. 

4  "Records  of  Massachusetts  Bay"  (Shurtleffs  Ed.,  Boston,  1853),  I,  n,  12. 


74  THE   PEOPLE'S    LAW 

This  was  conferring  upon  the  company  the  law-making  functions 
of  a  guild.  In  1629,  while  the  headquarters  of  the  company  and 
the  greater  portion  of  its  membership  were  still  in  England,  a  frame 
of  government  for  the  corporation  in  its  new  home  was  adopted  which 
contained  the  following  preamble : *  — 

"Wheras  the  Kings  most  excellent  Maty  hath  bin  graciously  pleased  to 
erect  &  establish  vs,  by  his  lettres  pattents,  vnder  the  great  scale  of  England,  to 
bee  a  body  corporate,  entytuled  the  Gounor  &  Company  of  the  Mattachusetts 
Bay  in  New  England,  and  therby  hath  endowed  vs  wth  many  large  &  ample 
pruiledges  &  imunities,  wth  power  to  make  good  &  wholsome  lawes,  orders, 
&  ordinances,  for  the  better  maintenance  &  support  of  the  said  pruiledges,  and 
for  the  better  &  more  orderly  &  regular  gounmt,  to  bee  observed  in  the  pse- 
cucon  &  ppagacon  of  or  intended  voyages  &  the  plantacon  there,  authorising 
vs  to  nominate,  &  appoint,  &  select  fitt  psons  amoungst  orselves  for  the  manag- 
ing, ordering,  &  gouning  of  or  affaires,  both  in  England  &  in  the  places  speyed 
&  graunted  vnto  vs  by  vertue  of  his  mats  charter,  wee  haue,  in  the  psecucon  of 
the  said  power  &  authoritie  giuen  vs,  &  in  conformitie  there  vnto  &  to  the  pur- 
pose &  intent  thereof,  &  not  otherwise,  thought  fitt  to  settle  and  establish  an 
absolute  gounmt  at  or  plantacon  in  the  said  Mattachusetts  Bay  in  New  England, 
wch,  by  the  vote  6°  consent  of  a  full  &  ample  Court  now  assembled,  is  thought  fitt, 
6°  ordered  as  followeth" 

But  while  this  colony  was  not  like  its  southern  neighbor  actually 
formed  by  the  transplantation  of  a  church,  it  soon  became  one  and 
that,  too,  by  the  formation  of  a  covenant.  In  the  same  year  of  the 
adoption  of  the  frame  of  government  above  mentioned,  but  after  the 
arrival  at  Salem,  the  members  adopted  the  following :  — 

"We  Covenant  with  the  Lord  and  one  with  another;  and  doe  bynd  our- 
selves in  the  presence  of  God,  to  walke  together  in  all  his  waies,  according  as 
he  is  pleased  to  reveale  himself  unto  us  in  his  Blessed  word  of  truth."  2 

This  was  renewed  by  the  adoption  in  1636  of  a  much  more  elabo- 
rate instrument,3  which  was  subscribed  by  the  members  and  mean- 
while in  1630  branches  of  the  colony  settling  at  Charlestown  and 
Watertown  adopted  similar  covenants.4 

After  the  colony  had  actually  become  settled  in  New  England 
popular  legislation  seems  to  have  been  less  in  vogue  than  in  the 
older  colony  of  New  Plymouth.  Indeed,  the  delegate  system  ap- 
peared earlier  in  the  younger  colony,  but  this  was  provided  by  the 

1  "Records  of  Massachusetts  Bay"  (Shurtleff  s  Ed.,  Boston,  1853),  I,  361. 

2  Burrage,  "The  Covenant  Idea,"  88;   Crocker,  "The  Unitarian  Church,"  15. 
8  Its  text  is  given  in  Burrage,  89,  90. 

4  Id.  91-93. 


POPULAR    RATIFICATION    IN   COLONIAL   AMERICA  75 

people  themselves.     Thus  at  the  General  Court  held  in  Boston  in 


"It  was  ppounded  if  it  were  not  the  best  course  that  the  ffreemen  should 
haue  the  power  of  chuseing  Assistants  when  there  are  to  be  chosen,  &  the  Assist- 
ants from  amongst  themselues  to  chuse  a  Gounr  &  Deputy  Gounr,  whoe  wth 
the  Assistants  should  haue  the  power  of  makeing  lawes  &  chuseing  officers  to 
execute  the  same.  This  was  fully  assented  vnto  by  the  genall  vote  of  the  people, 
&  ereccon  of  hands." 

Again  in  1634  it  was  agreed,2  "That  none  but  the  Genall  Court 
hath  power  to  make  and  establishe  lawes." 

But  like  their  germs  and  predecessors,  the  Anglo-Saxon  shire- 
moots  and  Witenagemote,  the  General  Court,  at  least  for  the  election 
of  magistrates,  appears  to  have  included  in  practice  no  less  than,  in 
theory,  the  whole  body  of  the  freemen.  For  in  1635  3 

"It  is  ordered,  that  the  Genall  Court,  to  be  holden  in  May  nexte,  for  eleccon 
of  magistrates,  &c,  shalbe  holden  att  Boston,  &  that  the  townes  of  Ipswch, 
Neweberry,  Salem,  Saugus,  Waymothe,  &  Hingham  shall  have  libertie  to  stay 
soe  many  of  their  ffreemen  att  home,  for  their  safty  of  the  towne,  as  they  fudge 
needefull,  &  that  the  saide  ffreemen  that  are  appoyncted  by  the  towne  to  stay 
att  home  shall  have  liberty  for  this  Court  to  send  their  voices  by  pxy." 

It  is  clear  from  this  that  at  such  a  meeting  all  freemen  were  ex- 
pected to  attend  and  were  only  excused  for  the  reasons  named. 
Moreover,  we  see  here  an  additional  reason  for  the  substitution  of 
proxy,  for  direct,  legislation.  The  colonists  had  begun  to  settle  some 
distance  from  Boston,  and  it  was  not  merely  inconvenient  but  danger- 
ous for  all  to  attend  and  leave  their  homes  exposed  to  attack  by  the 
Indians. 

But  while  these  and  other  causes  operated  to  establish  the  dele- 
gate system  in  Massachusetts  Bay  sooner  than  in  New  Plymouth, 
still  the  former  colony  was  not  without  experience  as  regards  both 
the  initiation  and  ratification  of  laws.  At  the  General  Court  in 
1637-1638,  the  following  appears  among  the  proceedings:4  — 

"  For  the  well  ordering  of  these  plantations  now  in  the  begining  thereof,  it 
haveing  bene  found  by  the  little  time  of  experience  wee  have  heare  had,  that  the 
want  of  written  lawes  have  put  the  Court  into  many  doubts  &  much  trouble  in 
many  perticuler  cases,  this  Court  hath  therefore  ordered  that  the  freemen  of  every 

1  "Records  of  Massachusetts  Bay"  (Shurtleffs  Ed.,  Boston,  1853),  I,  79. 

2  Id.  117. 

3  Id.  166.     Cf.  188. 

4  Id.  222. 


76  THE   PEOPLE'S   LAW 

towne  (or  some  part  thereof  chosen  by  the  rest)  wthin  this  Jurisdiction  shall 
assemble  together  in  their  severall  townes,  &  collect  the  heads  of  such  necessary 
&  fundamentall  lawes  as  may  bee  sutable  to  the  times  &  places  whear  God  by 
his  pvidence  hath  cast  vs,  &  the  heads  of  such  lawes  to  deliver  in  writing  to  the 
Governor  for  the  time  being  before  the  5th  day  of  the  4th  month,  called  June,  next, 
to  the  intent  that  the  same  Governor,  together  with  the  rest  of  the  standing  coun- 
sell,  &  Richrd  Bellingham,  Esq.,  Mr.  Bulkley,  Mr.  Philips,  Mr.  Peters,  &  Mr. 
Sheopard,  elders  of  severall  churches,  Mr.  Nathaniell  Ward,  Mr.  Willi:  Spencer, 
&  Mr.  Will :  Hauthorne,  or  the  Major  part  of  them,  may,  vpon  the  survey  of  such 
heads  of  lawes,  make  a  compendius  abrigment  of  the  same  by  the  Generall  Court 
in  autume  next,  adding  yet  to  the  same  or  detracting  therefrom  what  in  their 
wisdomes  shall  seeme  meete,  that  so  the  whole  worke  being  ppfected  to  the  best 
of  their  skill,  it  may  bee  psented  to  the  Generall  Court  for  confirmation  or  reiec- 
tion,  as  the  court  shall  adjudge." 

This  reads  like  an  early  instance  of  the  initiative.  Shortly  after- 
ward we  find  an  example  of  the  referendum.  In  1639  * 

"it  is  ordered,  that  the  Governor,  Deputy  Governor,  Treasurer,  &  Mr.  Stough- 
ton,  or  any  three  of  them,  with  two  or  more  of  the  deputies  of  Boston,  Charles 
towne,  or  Roxberry  shall  pervse  all  those  modells,  wch  have  bene,  or  shalbee 
further  psented  to  this  Court,  or  themselues,  concerning  a  forme  of  govern- 
ment, &  lawes  to  bee  established,  &  shall  drawe  them  vp  into  one  body,  (alter- 
ing, ading,  or  omiting  what  they  shall  thinke  fit,)  &  shall  take  order  that  the  same 
shalbee  coppied  out  &  sent  to  the  severall  townes,  that  the  elders  of  the  churches 
&  freemen  may  consider  of  them  against  the  next  Generall  Court,  &  the  charges 
thereof  to  bee  defrayed  by  the  Treasurer." 

Finally  in  the  record  of  a  session  of  the  General  Court  held  in  1641 
appears  the  following  entry : 2  — 

"At  this  Court,  the  bodye  of  laues  formerly 
sent  forth  amonge  the  ffreemen,  &c, 
was  voted  to  stand  in  force,  &c." 

In  all  this  we  observe  the  preparation  of  the  Massachusetts  Bay 
Colony  for  popular  constitution-making.  That  their  descendants  in 
the  following  century  employed  the  same  methods  is  not  singular. 
It  would  have  been  strange  indeed,  had  they  ignored  these  precedents 
of  the  formative  period  of  their  commonwealth. 

Popular  Legislation  in  the* Towns 

Meanwhile  a  system  of  popular  legislation  was  being  developed 
in  the  towns,  as  is  illustrated  by  the  case  of  Dorchester,  where,  in 
October,  1633,  it  was 

1  "Records  of  Massachusetts  Bay"  (Shurtleff's  Ed.,  Boston,  1853),  I,  279.      2  Id.  346. 


POPULAR   RATIFICATION    IN   COLONIAL   AMERICA  77 

"Ordered  that  for  the  general  good  and  well  ordering  of  the  affairs  of  the 
plantation  there  shall  be  every  Monday  before  the  court  by  eight  o'clock  A.M. 
and  presently  by  the  beating  of  the  drum,  a  general  meeting  of  the  inhabit- 
ants of  the  plantation  at  the  meeting  house,  there  to  settle  and  set  down 
such  orders  as  may  tend  to  the  general  good  as  aforesaid  and  every  man  to  be 
bound  thereby  without  gainsaying  or  resistance." 

and  that, 

"All  things  concluded  as  aforesaid  shall  stand  in  force  and  be  obeyed  until 
the  next  Monthly  meeting  and  afterwards  if  it  be  not  contradicted  and  other- 
wise ordered  at  said  monthly  meeting,  by  the  greatest  vote  of  those  present  as 
aforesaid."1 

"This  formal  document,"  says  Mowry,2  "will  answer  for  a 
constitution." 

In  1636  the  General  Court  ordered  that  "the  freemen  of  every 
town  or  a  major  portion  of  them  .  .  .  make  such  laws  and  constitu- 
tions (sic)  as  concern  the  welfare  of  their  town  .  .  .  not  of  a  criminal 
but  of  a  prudential  nature."  3 

3.     The  New  England  Confederation 

So  strong  indeed  was  the  force  of  this  custom  that  in  1643  when 
the  New  England  Confederation  was  formed  the  delegates  or  com- 
missioners from  New  Plymouth  referred  the  Articles  of  Confederation 
to  the  people  of  their  colony  and  refrained  from  signing  until  these 
had  received  the  popular  assent.4 

The  Articles  of  Confederation  were  agreed  upon  at  a  meeting  of 
the  commissioners  at  Boston  on  May  19,  1643,  but  the  delegates 
from  New  Plymouth,  Edward  Winslow  and  William  Collyer,  with- 
held their  signatures  from  the  instrument  until  the  people  of  their 
colony  were  given  an  opportunity  to  pass  upon  its  provisions.5  Not 
only  did  the  General  Court  of  New  Plymouth  order  that  the  delegates 
should 

"have  full  commission   and  authoryty,  in  name  of  the  whole   Court,  to  sub- 
scribe the  articles  of  confederacon  (now  read  in  the  Court)  with  the  Massachu- 

1  "Dorchester  Town  Records"  (in  the  4th  Report  of  Boston  Record  Commission), 
New  England  Magazine,  II,  108. 

2  "Influence  of  John  Calvin  on  the  New  England  Town  Meeting,"  Id.  108. 

3  Id.  108,  109. 

4  "Colonial  Laws  of  Massachusetts"  (Whitmore's  Ed.),  I,  7  et  seq. 

6  "Records  of  the  Colony  of  New  Plymouth"  (edited  by  Pulsifer,  Boston,  1859), 
IX,  9. 


78  THE  PEOPLE'S   LAW 

setts,  Conectacutt,  and  New  Haven,  and  to  subscribe  the  same  in  name  of 
the  whole,  and  to  affix  thereto  the  comon  scale  of  the  goument,"  x 

but  the  question  was  submitted  to  and  approved  by  the  town  meet- 
ings. One  record  of  the  ensuing  commissioners'  meeting  is  as 
follows :  — 

"At  a  meeting  of  the  Comissioners  for  the  confedacon  held  at  Boston  the 
seauenth  of  Septembr,  It  appeareing  that  the  Genall  Court  of  New  Plym  the 
seuall  Towneships  thereof  haue  read  considered  approued  these  Articles  of  con- 
federacon,  as  appeareth  by  comission  from  their  Genall  Court  beareing  date 
the  XXIXth  of  August,  1643  to  Mr.  Edward  Winslow,  Mr.  Willm.  Collyer  to 
ratifye  and  confirme  the  same  on  their  behalf  wee  therefore  the  comission  ers  for 
the  Mattachusetts  Conecktacutt  New  Haven  doe  also  for  or  seuall  Gouments 
subscribe  vnto  them."2 

Another  version  is  the  following :  — 

"The  Articles  of  Confederacon  agreed  at  Bostone  the  XlXth  of  May  last 
being  now  read  Mr.  Edward  Winslow  Mr.  William  Collyer  Comissioners  for 
the  Jurisdiccon  of  New  Plymouth  deliuered  in  an  Order  of  their  Genall  Court 
Dated  the  XXIXth  of  August,  1643  by  wch  it  appeares  that  the  said  Articles  of 
the  XIX  of  May  weere  read  approued  and  confirmed  by  the  said  Genall  Court 
by  all  their  Townships  and  they,  the  sd  Mr.  Winslow  &  Mr.  Collyer  were  both 
authorized  to  ratine  them  by  their  subscriptions  and  chosen  sent  as  Comis- 
sioners for  that  Jurisdiccon  with  full  power  to  treate  and  conclud  in  all  matters 
concerneing  warr  and  peace  according  to  ye  tenor  and  true  meaneing  of  the  said 
Articles  of  Confederacon  for  this  prsent  meetinge."3 

Thus  during  more  than  a  quarter  of  a  century,  including  its 
formative  period,  the  inhabitants  of  these  colonies  enjoyed  a  more 
or  less  complete  system  of  direct  popular  legislation.  And  why 
should  they  not?  They  had  brought  it  with  them  and  had 
practised  it  in  a  measure  in  their  old  home.  They  needed  no  urg- 
ing in  this  direction  then,  nor  did  their  descendants  in  the  following 
century  when  they  came  to  separate  from  Great  Britain  and  frame 
their  fundamental  law.  The  example  of  the  Pilgrim  Republic  was 
sufficient. 

B.   Rhode  Island 
i.    Popular  Ratification  in  the  Towns 

Civic  life  in  Rhode  Island  began,  not  in  the  form  of  a  central 
colonial  government,  but  in  the  separate  towns,  which  at  first  had 

1  "Records  of  the  Colony  of  New  Plymouth"  (edited  by  Pulsifer,  Boston,  1855), 

II,  56. 

2  Id.  IX,  8.  »  Id.  9. 


POPULAR   RATIFICATION    IN    COLONIAL   AMERICA  79 

no  political  connection  with  each  other.  In  each,  however,  the  in- 
habitants adopted  a  compact  or  instrument  of  government  in  which 
the  element  of  popular  approval  is  the  most  conspicuous  feature. 
Thus  on  the  settlement  of  Providence  in  1636,  the  colonists  adopted 
and  signed  the  following : *  — 

"We  whose  names  are  hereunder,  desirous  to  inhabit  in  the  town  of  Provi- 
dence, do  promise  to  subject  ourselves  in  active  and  passive  obedience  to  all  such 
orders  or  agreements  as  shall  be  made  for  public  good  of  the  body  in  an  orderly 
way  by  the  major  consent  of  the  present  inhabitants,  masters  of  families  incor- 
porated together  in  a  Towne  fellowship,  and  others  whom  they  shall  admit  unto 
them  only  in  civil  things." 

The  next  year  the  colonists  had  occasion  to  pass  on  a  report  of 
certain  of  their  number  who  had  been  chosen  as  arbitrators.  The 
report  contained  not  only  a  scheme  for  the  arbitration  of  differences 
among  the  colonists,  but  also  provisions  regarding  land  titles  and 
boundaries  and  "  proposals  for  a  form  of  government."  2  This  rela- 
tively elaborate  piece  of  legislation  was  laid  before  the  inhabitants 
and  not  put  into  force  until  it  had  received  their  assent  manifested 
by  their  signatures,  their  names  being  signed  immediately  below 
those  of  the  arbitrators  who  present  the  report.3 

The  town  of  Portsmouth  was  organized  in  1638  under  a  compact 
adopted  and  signed  by  the  inhabitants,  which  reads  as  follows :  — 

"We  whose  names  are  underwritten  do  here  solemnly  in  the  presence  of 
Jehovah  incorporate  ourselves  into  a  Bodie  Politick  and  as  he  shall  help,  will 
submit  our  persons  lives  and  estates  unto  our  Lord  Jesus  Christ,  the  King  of 
Kings  and  Lord  of  Lords  and  to  all  those  perfect  and  most  absolute  lawes  of  his 
given  us  in  his  holy  word  of  truth,  to  be  guided  and  judged  thereby. "  4 

In  other  words,  we  find  here,  as  in  many  other  New  England 
settlements,  an  adoption  of  the  Bible  as  the  law  of  the  land,  and  this 

1  "Records  of  the  Colony /of  Rhode  Island"  (Providence,  1856),  I,  14.     "From 
the  momentous  consequences  that  have  resulted  from  it,"  says  Mr.  Amasa  M.  Eaton, 
"  it  is  certainly  one  of  the  most  famous  compacts  of  government  ever  drawn."  — Harvard 
Law  Review,  XIII,  449. 

Strangely  enough,  however,  when  the  church  was  organized  two  years  later,  — 
the  first  Baptist  church  in  America,  — no  covenant  was  adopted.  See  Burrage,  "The 
Church  Covenant,"  95. 

2  "  Records  of  the  Colony  of  Rhode  Island,"  I,  27  ct  seq.,  where  the  report  is  set  out 
in  full. 

3  Id.  31. 

4  Id.  52.     Certain  citations  to  Old  Testament  texts  follow  the  portion  here  set 
forth. 


80  THE   PEOPLE'S   LAW 

was  accomplished  by  the  voluntary  action  of  the  inhabitants  in  the 
form  of  a  covenant.  A  new  compact  reaffirming  and  extending  the 
obligations  of  the  old  was  adopted  in  the  following  year.1 

The  subsequent  records  of  the  same  town  disclose  that  all  matters, 
even  the  minutest,  that  could  be  regarded  as  of  common  interest, 
were  brought  before  the  town  meeting,  and  in  order  to  insure  general 
participation  so  that  the  voice  of  the  whole  people  might  be  heard, 

"It  is  ordered  that  if  any  of  the  Freemen  of  this  Body  shall  not  repair  to  the 
publick  meetings  to  treate  upon  the  publick  affairs  of  the  Body  upon  publick 
warning  (Whether  by  beate  of  the  Drumm  or  otherwise)  if  they  fayle  one  quarter 
of  an  houre  after  the  second  sound,  they  shall  forfeitt  twelve  pence ;  or  if  they 
depart  without  leave  they  are  to  forfeitt  the  same  summ  of  twelve  pence."  2 

The  colonists  of  Newport  in  1639,  before  they  had  actually  settled 
at  their  proposed  location,  adopted  and  signed  a  compact  in  which 
they  declared  "that  our  deliberations  shall  be  by  major  voice  of 
judge  and  elders."  3  Two  years  later  at  a  "  General  Court"  of  the 
inhabitants  held  at  Portsmouth,  which  legislated  extensively  and 
seemingly  for  both  Newport  and  Portsmouth,  which  were  situated 
on  the  same  island, 

"It  is  ordered  and  unanimously  agreed  upon,  that  the  Government  which 
this  Bodie  Politick  doth  attend  unto  in  this  Island,  and  the  Jurisdiction  thereof, 
in  favor  of  our  Prince,  is  a  Democracie  or  Popular  Government ;  that  is  to  say, 
It  is  in  the  Powre  of  the  Body  of  Freemen,  orderly  assembled  or  the  major  part 
of  them,  to  make  or  constitute  Just  Lawes,  by  which  they  will  be  regulated,  and 
to  depute  from  among  themselves  such  Ministers  as  shall  see  them  faithfully 
executed  between  Man  and  Man. " 4 

Thus  in  these  separate  towns  of  primitive  Rhode  Island  we  find 
all  the  marks  of  a  pure  democracy.  The  people  are  not  merely  the 
source  of  legislative  power,  —  they  are  the  legislators.  As  Bancroft 
well  says:  — 

"This  first  system  had  its  decisive  influence  on  the  whole  political  history 
of  Rhode  Island."6 

2.    Popular  Legislative  System  Perfected 

The  first  charter  of  the  colony  of  Rhode  Island  is  styled  a  patent 
for  "the  Incorporation  of  Providence  Plantations  in  the  Narragansett 

1  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  70. 

2  Id.  57.  3  Id.  87.  4  Id.  112. 
6  "History  of  the  United  States"  (Rev.  Ed.,  Boston,  1878),  I,  301. 


POPULAR   RATIFICATION    IN   COLONIAL   AMERICA  8 1 

Bay  in  New  England,"  l  and  bears  date  1643.  It  confers  on  the 
inhabitants 

"full  power  and  authority  to  rule  themselves,  and  such  others  as  shall  hereafter 
inhabit  within  any  part  of  the  said  tract  of  land  by  such  a  form  of  Civil  Govern- 
ment as  by  voluntary  consent  of  all,  or  the  greater  part  of  them,  they  shall  find  most 
suitable  to  their  estate  and  condition. "  2 

Pursuant  to  the  liberal  provisions  of  this  instrument  the  freemen 
of  the  four  colonies  of  Providence,  Newport,  Warwick,  and  Ports- 
mouth met  at  the  last  named  in  "general  court"  on  May  19,  1647, 
and  continued  in  session  for  several  days.3  One  of  the  important 
results  of  this  meeting  was  an  advanced  and  comprehensive  code  of 
laws,  a  prominent  feature  of  which  is  the  increasing  recognition  of 
the  right  of  popular  participation  in  law-making.  Thus : — 

"It  was  unanimously  agreed,  That  we  do  all  owne  and  submit  to  the  Lawes 
as  they  are  contracted  in  the  Bulke  with  the  Administration  of  Justice,  according 
thereto,  which  are  to  stand  in  force  till  the  next  Generall  Courte  of  Election,  and 
every  Towne  to  have  a  Coppie  of  them,  and  then  to  present  what  shall  appear 
therein  not  to  be  suitable  to  the  Constitution  of  the  place,  and  then  to'  amend  it."  4 

Having  thus  announced  the  general  principle  which  is  to  govern 
the  mechanics  of  legislation  in  Rhode  Island,  its  details  are  more  fully 
prescribed  as  follows:  — 

"II.  It  is  ordered,  that  all  cases  presented,  concerning  General  Matters 
for  the  Colony,  shall  be  first  stated  in  the  Townes,  Vigd't,  That  is  when  a  case  is 
propounded  .  .  .  The  Towne  where  it  is  propounded  shall  agitate  and  fully  diss- 
cus  the  matter  in  their  Towne  Meetings  and  conclude  by  Vote ;  and  then  shall  the 
Recorder  of  the  Towne,  or  Towne  Clerke,  send  a  coppy  of  the  agreement  to  every 
of  the  other  three  Townes,  who  shall  agitate  the  case  likewise  in  each  Towne 
and  vote  it  and  collect  the  votes.  Then  shall  they  commend  it  to  the  Committee 
for  the  General  Courte  (then  a  meeting  called),  who  being  assembled  and  finding 
the  Major  parte  of  the  Colonie  concurring  in  the  case,  it  shall  stand  for  a  Law 
till  the  next  Generall  Assembly  of  all  the  people,  then  and  there  to  be  considered 
whether  any  longer  to  stand,  yea  or  no :  Further  it  is  agreed,  that  six  men  of 
each  Towne  shall  be  the  number  of  the  Committee  premised,  and  to  be  freely 
chosen.  And  further  it  is  agreed,  that  when  the  General  Courte  thus  assembled 
shall  determine  the  cases  before  hand  thus  presented,  It  shall  also  be  lawful  for 
the  said  General  Court,  and  hereby  are  they  authorized,  that  if  vnto  them  or  any 
of  them  some  case  or  cases  shall  be  presented  that  may  be  deemed  necessary  for 

1  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  143  et  seq. 

2  Id.  146. 

3  Id.  147.     Cf.  "Book  Notes"  (Providence,  1894),  May  5,  1894. 

4  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  148.     (Sec.  7 
of  the  Code.) 

G 


82  THE  PEOPLE'S    LAW 

the  public  weale  and  good  of  the  whole,  they  shall  fully  debate,  discuss  and  deter- 
mine ye  matter  among  themselves:  and  then  shall  each  Committee  returning  to 
their  Towne  declare  what  they  have  done  in  the  case  or  cases  premised.  The 
Townes  then  debating  and  concluding  the  votes  shall  be  collected  and  sealed  up, 
and  then  by  the  Towne  Clarke  of  each  Towne  shall  be  sent  with  speed  to  the 
General  Recorder,  who,  in  the  presence  of  the  President  shall  open  the  vote: 
and  if  the  major  vote  determine  the  case,  it  shall  stand  as  a  Law  till  the  next 
General  Assemblie  then  or  there  to  be  confirmed  or  nullified. " l 

Arnold,  the  historian  of  Rhode  Island,  comments  as  follows  upon 
this  unique  system  of  popular  legislation :  — 

"All  laws  were  to  be  first  discussed  in  the  towns;  the  town  first  proposing  it 
was  to  agitate  the  question  in  town  meeting  and  conclude  by  vote.  The  town 
clerk  was  to  send  a  copy  of  what  was  agreed  on  to  the  other  three  towns,  who 
were  likewise  to  discuss  it  and  take  a  vote  in  town  meeting.  They  then  handed 
it  over  to  a  committee  of  six  men  from  each  town,  freely  chosen,  which  committees 
constituted  'the  General  Court,'  who  were  to  assemble  at  a  call  for  the  purpose, 
and,  if  they  found  the  majority  of  the  colony  concurred  in  the  case,  it  was  to  stand 
as  a  law,  'till  the  next  General  Assembly  of  all  the  people  '  who  were  finally  to  decide 
whether  it  should  continue  as  law  or  not.  Thus  the  laws  emanated  directly 
from  the  people.  The  General  Court  had  no  power  of  revision  over  cases  already 
presented,  but  simply  the  duty  of  promulgating  the  laws  with  which  the  towns 
had  intrusted  them.  The  right  to  originate  legislation  was,  however,  vested  in 
them,  to  be  carried  out  in  this  way.  When  the  court  had  disposed  of  the  matters 
for  which  it  was  called,  should  any  case  be  presented  upon  which  the  public  good 
seemed  to  require  their  action,  they  were  to  debate  and  decide  upon  it.  Then 
each  committee,  on  returning  to  their  town  was,  to  report  the  decision,  which 
was  to  be  debated  and  voted  upon  in  each  town ;  the  votes  to  be  sealed  and  sent 
by  each  town  clerk  to  the  General  Recorder,  who,  in  presence  of  the  President, 
was  to  count  the  votes.  If  a  majority  were  found  to  have  adopted  the  law,  it 
was  to  stand  as  such  till  the  next  General  Assembly  should  confirm  or  repeal  it. 
The  jealousy  with  which  the  people  maintained  their  rights,  and  the  checks  thus 
put  upon  themselves  in  the  exercise  of  the  law-making  power,  as  displayed  in 
this  preliminary  act,  present  most  forcibly  the  union  of  the  two  elements  of  liberty 
and  law  in  the  Rhode  Island  mind. "  2 

Thus  more  than  a  century  and  a  quarter  before  the  first  state 
constitutions  were  framed  the  inhabitants  of  the  little  commonwealth 
of  Rhode  Island  were  applying  in  ordinary  legislation  the  system 

1  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  148,  149.  Mr. 
Amasa  M.  Eaton  observes:  "It  is  believed  that  in  this  statute  is  found  the  earliest 
known  instance  of  the  initiative  and  referendum  now  so  much  admired  in  the  Swiss 
constitution."  Harvard  Law  Review,  XIII,  584.  We  shall  see,  however,  that  the  refer- 
endum principle  had  already  been  employed  in  Connecticut,  in  amending  the  "  Funda- 
mental Orders,"  post,  89  et  seq. 

3  Arnold,  "History  of  Rhode  Island"  (New  York,  1859),  I,  203,  204. 


POPULAR   RATIFICATION   IN   COLONIAL   AMERICA  83 

which  was  ultimately  to  prevail  in  adopting  the  organic  laws  of  the 
great  states  of  the  American  Union. 

3.    Rise  of  the  Delegate  System 

Up  to  the  middle  of  the  seventeenth  century,  then,  the  polity  of 
Rhode  Island,  both  in  the  individual  towns  and  in  the  united  colony, 
was  that  of  a  pure  democracy  —  one  of  the  best  examples,  indeed, 
of  that  form  of  government  which  may  be  found  in  all  history.  But 
with  the  growth  of  the  colony  there  came  a  change  from  the  system 
of  direct  popular  participation  to  that  of  delegation,  and  this  change 
is  marked  by  innovations  in  the  manner  of  enacting  laws. 

In  1650  the  General  Court,  meeting  at  Newport,  voted  to  confer 
its  powers  upon  a  " Representative  Committee"  consisting  of  six 
from  each  town.1  This  body,  later  in  the  same  year,  amended  the 
statute  providing  for  popular  ratification  of  laws  as  follows :  — 

"It  is  ordered  that  from  henceforth  the  representative  committee  being 
assembled  and  having  enacted  law  or  lawes,  the  said  lawes  shall  be  returned 
within  six  dayes  after  the  breaking  up  or  adjournment  of  that  Assemblie;  and 
then  within  three  days  after  the  chiefe  officer  of  the  towne  shall  call  the  Towne 
to  the  hearing  of  the  Lawes  so  made ;  and  if  any  Freeman  shall  mislike  any  law 
then  made,  they  shall  send  their  votes  with  their  names  fixed  thereto  vnto  the 
General  Recorder  within  tenn  dayes  after  the  reading  of  thoss  lawes  and  no 
longer.  And  if  itt  appeare  that  the  major  vote  within  that  time  prefixed,  shall 
come  in  and  declare  itt  to  be  a  nullity,  then  shall  the  Recorder  signifie  it  to  ye 
President,  and  the  President  shall  forthwith  signifie  to  ye  Townes  that  such  or 
such  lawes  is  a  null,  and  the  silence  to  the  rest  shall  be  taken  for  approbation  and 
confirmation  of  the  lawes  made:  And  it  is  ordered  further,  that  the  eleventh 
lawe  made  at  Portsmouth,  May  20,  21 — 1647  —  is  repealed."2 

In  May,  1653,  this  Court  of  Commissioners  or  delegates  enacted 

"that  all  orders  made  by  the  townes,  either  joyntlie  or  apart,  by  authentic  of 
the  charter,  be  authorized  to  be  in  force  until  by  a  General  Assemblie  repealed." 

And  further  ordered 

"that  all  the  inhabitants  that  allowed  the  propositions  sent  to  each  towne,  sett 
to,  or  subscribe  their  names  for  confirmation  thereof. "  3 

In  1658  the  same  court  in  session  at  Warwick  enacted  the  fol- 
lowing :  — 

1  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  228;    "Book 
Notes"  (Providence,  1894),  May  5,  1894. 

2  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  229. 

3  Id.  260;   "Book  Notes"  (Providence,  1894),  May  5,  1894. 


84  THE   PEOPLE'S   LAW 

"Whereas,  it  is  conceived  a  wholesome  liberty  for  the  whole  or  major  parte 
of  the  free  inhabitants  of  this  collony  orderly  to  consider  of  the  lawes  made  by 
the  Commissioners'  Courts:  and  upon  finding  discommodity  in  any  law  made 
by  the  sayd  court,  then  orderly  to  show  their  dislike,  and  soe  to  invalid  such  a  law. 

"It  is  therefore  ordered  and  declared  by  this  present  Assembly,  that  from 
henceforth  the  Generall  Recorder  upon  (such)  pennalty  as  shall  be  Judged  meete 
by  a  court  of  commissioners,  shall  send  into  each  towne  a  coppie  of  the  lawes  that 
are  made  at  such  courts,  soe  as  they  may  be  delivered  to  the  Towne  Clarke  of 
each  towne  within  ten  daies  after  the  dissolution  of  each  court  from  time  to  time ; 
and  then  the  townes  to  have  tenn  daies  time  longer  to  meete  and  publish  the  sayd 
lawes,  and  to  consider  of  them.  And  in  case  the  free  inhabitants  of  each  towne, 
or  the  major  parte  of  them  doe  in  a  lawfull  assembly  vote  down  any  law,  and 
scale  up  the  voates,  and  send  them  to  the  Generall  Recorder  within  the  sayd  tenn 
daies:  and  that  by  the  voates  it  doth  appeare  that  the  major  parte  of  the  people 
in  each  towne  have  so  dissalowed  it,  then  such  a  law  to  bee  in  noe  force ;  and  other- 
wise if  that  bee  not  soe  done  within  the  twenty  daies  after  the  dissolution  of  each 
court,  then  all  and  every  law  to  be  in  force :  And  however  all  to  be  in  force  that 
are  not  soe  disannulled,  and  the  townes  shall  pay  the  charge  of  sendinge  the  fore 
sayd  coppies.  Further,  the  Recorder  is  to  open  the  sayd  voates  before  the  Presi- 
dent, or  in  his  absence,  before  the  Assistant  of  the  Towne  where  the  Recorder 
lives,  and  then  the  President  or  such  Assistant  to  give  notice  to  the  rest  of  the 
majestrates. "  1 

Two  years  later  a  change  is  made  by  which  ratification  by  a 
majority  of  the  voters  of  the  entire  colony  is  accepted  in  lieu  of  a 
majority  of  those  in  each  town,2  and  by  which  the  period  is  lengthened 
within  which  laws  may  be  disapproved.  The  General  Court  meeting 
at  Portsmouth  in  1660  provided :  — 

"Whereas,  there  is  a  certayne  clause  in  a  law  made  at  Warwick,  November 
the  2d  1658,  toutching  the  people's  libertie  to  disannull  any  law  to  them  presented 
from  the  Courts  of  Commissioners,  as  there  is  premised :  by  which  clause  it  seems 
the  privilidges  are  not  soe  clearly  evinced  as  the  Commissioners  thereby  and 
therein  did  intend  in  formeinge  the  same  law,  in  regard  of  this  clawse  (that  the 
major  parte  of  each  Towne  in  the  Collony  must  send  in  their  voates  of  their  towne 
to  the  Generall  Recorder,  to  disallow  any  law  that  should  be  soe  presented,  within 
tenn  daies  after  it  is  presented  to  the  Towne,  if  they  conceive  such,  or  any  such 
law  not  wholesome).  It  is  therefore  ordered,  by  the  authority  of  this  present 
Assembly,  that  the  aforesaid  clause  be  rectified,  and  that  instead  thereof  it  be 
enacted,  and  it  is  hereby  enacted,  that  there  be  three  months  time,  that  is  to  say, 
fowre  score  and  six  daies  alowed  for  the  returne  of  the  voates  from  each  towne 
unto  the  General  Recorder  after  that  such  lawes  be  presented  (in  such  order  and 
time  as  by  the  foresayd  law  is  provided)  to  each  towne : 

1  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  401,  402. 

2  "This  was  a  great  step  toward    consolidation  of  the  united  government."  — 
Eaton,  "The  Right  to  Local  Self-Government,"  Harvard  Law  Review,  XIII,  587. 


POPULAR   RATIFICATION    IN    COLONIAL   AMERICA  85 

"  As  alsoe  wee  further  enact  that  it  appearinge  by  the  returne  of  the  voates, 
that  the  major  parte  of  the  free  inhabitants  of  this  Collony  have  disapproved  or 
disannulled  any  such  law  or  lawes,  then  the  sayd  law  or  lawes  to  be  of  noe  force ; 
although  any  one  towne  or  other  should  be  wholly  silent  therein,  Or  otherwise 
such  law  or  lawes  to  be  in  force  according  to  the  true  intent  of  the  other  parte  or 
clause  in  the  abovesayd  law  of  November  the  2d  1658;  and  this  foresayd  addition 
to  stand  and  be  in  full  force,  any  law  or  lawes,  or  any  clawes  or  clawses  in  any 
former  law  contayned,  to  the  contrary  notwithstandinge." l 

The  principle  of  popular  ratification  was  therefore  still  preserved 
notwithstanding  the  change  from  direct  to  delegate  legislation. 

4.   Decline  of  Popular  Law-making 

The  second  charter  of  Rhode  Island  was  granted  by  Charles  II,2 
and  was  one  of  the  results  of  the  mission  of  John  Clarke,  the  colony's 
agent  in  England,3  who  was  assisted  by  Roger  Williams  and  young 
Sir  Henry  Vane.4  It  is  a  notable  instrument  in  American  history, 
and  one  of  its  marks  of  distinction  is  the  fact  that  it  continued 
in  force  far  beyond  colonial  times.5 

But  though  denominated  "  republican,"  6  its  effects  (probably  un- 
foreseen and  unintended)  upon  Rhode  Island's  democratic  system  of 
law-making  were  disastrous.  Inter  alia  it  empowered  the  general 
assembly,  consisting  of  the  governor,  "  assistants,"  and  representa- 
tives from  the  towns, 

"To  make,  ordeyne,  constitute  or  repeal  such  lawes,  statutes,  orders  and 
ordinances,  fformes  and  ceremonies  of  government  and  magistracys  as  to  them 
shall  seeme  meete  for  the  good  and  wellfare  of  the  sayd  gouraour  and  company." 7 

This  grant  appears  to  have  been  construed  as  exclusive  and  as 
conferring  upon  the  assembly  the  sole  power,  at  least  of  repealing 
laws.  For  the  very  next  year  (1664)  the  assembly  sitting  at  New- 
port enacted :  — 

"That  whereas  ther  are  several  lawes  extant  amongst  our  former  lawes  incon- 
sistant  with  the  present  Government,  as  houlding  of  Courts  of  Commitions,  and 
repealing  of  the  acts  of  the  General  Assemblyes  by  votings  in  town  meetings 

"Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  I,  429. 
Id.  II,  3. 

Arnold,  "History  of  Rhode  Island"  (New  York,  1859),  I,  284.     See  the  minutes 
of  a  vote  of  thanks  by  the  colony  to  Clarke.     Id.  I,  510. 

Borgeaud,  "Rise  of  Democracy  in  Old  and  New  England"  (London,  1894),  159. 
See  post,  Chap.  XIII. 

Arnold,  "History  of  Rhode  Island"  (Providence,  1856),  I,  294,  295. 
"Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  II,  9. 


86  THE   PEOPLE'S    LAW 

together  with  several  other  of  licke  natuer,  which  are  contradictory  to  the  forme  of 
the  present  government,  erected  by  his  Majestyes  and  gratious  letters  pattent, 
that  all  such  lawes  be  declared  null  and  voyd,  and  that  all  other  lawes  be  of  force 
vntil  some  other  course  be  taken  by  a  Generall  Assembly  for  better  provition 
hearin."1 

With  this  enactment  the  practice  of  submitting  laws  to  a  popular 
vote  seems  to  have  fallen  into  temporary  disuse  2  in  Rhode  Island. 
"No  mention  of  the  referendum  under  the  second  charter  has  been 
found,"  says  Dr.  Bishop.3  The  initiative,  however,  seems  not  to  have 
come  within  the  scope  of  the  statute  of  1664.  Indeed  it  is  declared 
by  an  eminent  Rhode  Island  writer  that  "the  power  of  the  freemen 
of  the  town  to  initiate  legislation  has  never  been  formally  abolished 
but  is  only  lost  through  non-use."  4  But  in  any  event  the  lessons 
learned  in  this  colonial  school  of  pure  democracy  were  never  wholly 
lost  by  the  people  of  Rhode  Island.  Until  1760  the  form  of  a  folk- 
moot  for  the  entire  colony  was  preserved  and  all  the  freemen  con- 
tinued to  vote  at  Newport.5  Near  the  close  of  the  eighteenth  century 
we  shall  find  Rhode  Island  alone  of  all  the  thirteen  commonwealths 
voting  directly  upon  the  adoption  of  the  Federal  Constitution.  We 
shall  find  its  people,  too,  reviving  and  exercising  this  ancient  preroga- 
tive with  reference  to  every  proposed  constitution  offered  as  a  sub- 
stitute for  their  venerable  charter.  And  when  one  was  finally  adopted, 
we  shall  find  that  it  afforded  the  means  of  a  revival,  though  limited  and 
partial,  of  the  same  practice  as  regards  ordinary  legislation.6  Recent 
disclosures  might  require  us  to  consider  also  whether  a  complete 
restoration  of  that  practice  might  not  be  best  for  Rhode  Island,  and 
whether  the  change  from  popular  to  so-called  representative  legisla- 
tion has  been  justified  by  the  results.  It  has  been  repeatedly  em- 
phasized that,  though  the  smallest  in  area,  Rhode  Island  holds  a 
unique  position  among  the  original  American  Commonwealths  by 

1  "Records  of  the  Colony  of  Rhode  Island"  (Providence,  1856),  II,  27. 

2  "Thus  came  to  an  end  the  Referendum  in  the  Colony  of  Rhode  Island  after 
having  been  in  practice  nearly  seventeen  years.     I  believe  it  is  not  now  possible  to  cite 
a  case  where  a  law  was  thus  proposed  and  thus  defeated;   but  this  fact  (in  case  it  is 
a  fact)  would  not  prove  the  non-existence  of  such  cases.     Their  existence  is  beyond 
question." — "Book  Notes"  (Providence),  May  5,  1894. 

3  "History  of  Elections  in  the  American  Colonies,"  Columbia  University  Studies, 
III,  No.  i,  p.  12. 

4  Eaton,  "The  Right  to  Local  Self -Government,"  Harvard  Law  Review,  XIII,  588. 

5  See  "  Rhode  Island  Colonial  Records"  (Providence,  1861),  VI,  256,  257,  where 
the  act  allowing  "proxy  votes"  in  the  town  meetings  is  set  forth. 

8  See  post,  Chap.  XXVII. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA          87 

reason  of  the  instructiveness  and  fertility  of  its  institutional  history. 
The  Nestor  of  American  historians  declared  :  — 

"  The  annals  of  Rhode  Island,  if  written  in  the  spirit  of  philosophy,  would  ex- 
hibit the  forms  of  society  under  a  peculiar  aspect ;  had  the  territory  of  the  state 
corresponded  to  the  importance  and  singularity  of  the  principles  of  its  early  ex- 
istence, the  world  would  have  been  filled  with  wonder  at  the  phenomena  of  its 
history."1 

So  our  most  philosophical  foreign  critic2  of  recent  days  has 
observed,  concerning  the  same  state : — 

"It  has  an  area  of  only  1085  square  miles,  less  than  that  of  the  County  of 
Ayr  in  Scotland.  But  .  .  .  some  touch  of  that  dramatic  quality  which  belongs 
to  the  cities  of  Greece  and  Italy  recurs  in  this  little  republic  on  Narragansett  Bay. 
Unlike  in  many  ways  as  were  the  settlers  who  went  forth  from  England  under  the 
Stuarts  to  the  Greeks  of  two  thousand  years  earlier,  some  of  the  questions  which 
troubled  both  were  the  same,  and  bore  fruits  not  wholly  dissimilar.  Nor  are 
points  of  likeness  wanting  to  the  history  of  some  of  the  older  cantons  of  Switzer- 
land." 

But  the  characteristics  which  have  called  forth  these  eulogies 
belong  mostly  to  the  period  last  reviewed  and  which  closed  with  the 
granting  of  the  second  charter.  It  was  then  that  the  "  ideas  which 
have  since  become  national"  were  born  —  then  that  the  most  con- 
spicuous "points  of  likeness"  to  the  classical  nations  and  to  Switzer- 
land were  to  be  found. 

Of  contemporary  Rhode  Island  how  different  is  the  testimony.3 

1  Bancroft,  "History  of  the  United  States"  (23d  Ed.,  Boston,  1870),  I,  380,  381. 
Cf.  the  same  author's  "History  of  the  United  States"  (author's  last  revision),  (New 
York,  1891),  I,  255,  where  he  adds:  — 

"The  excellency  of  the  principles  on  which  it  rested  its  earliest  institutions  is  not 
diminished  by  the  narrowness  of  the  land  in  which  they  were  for  the  first  time  tested." 

This  was  indeed  a  favorite  theme  with  Mr.  Bancroft.  In  an  address  before  the 
New  York  Historical  Society  in  1866,  he  said  that  "more  ideas  which  have  since  be- 
come national  have  emanated  from  the  little  colony  of  Rhode  Island  than  from  any 
other."  See  Johns  Hopkins  University  Studies,  IV,  102,  103. 

2  Bryce,  "Introduction  to  Richman's  Rhode  Island"  (New  York,  1902),  v. 

3  "No  general  election  passes  without,  in  some  sections  of  the  state,  the  purchase 
of  votes  by  one  or  both  of  the  great  political  parties.  .  .  .     Many  assemblymen  occupy 
the  seats  they  do  by  means  of  purchased  votes.     In  a  considerable  number  of  our  towns 
bribery  is  so  common  and  has  existed  for  so  many  years  that  the  awful  nature  of  the 
crime  has  ceased  to  impress.  ...     It  is  well  known  that  in  such  towns,  when  one  politi- 
cal party  is  supplied  with  a  corruption  fund  and  the  other  is  without,  the  party  so  pro- 
vided invariably  elects  its  Assembly  ticket." —  From  Governor  Garvin's  Special  Message, 
March,  1903.    See  also  an  article,  "  Rhode  Island,  A  State  for  Sale,"  McClure's,  XXIV, 
337,  by  Lincoln  Steffens,  who  declares  (p.  253),  that  Rhode  Island  has  the  delegate 
system  with  all  its  evils  —  "a   government   controlled   by   the   purchase   of   twenty 


88  THE   PEOPLE'S   LAW 

If  we  are  to  assume  that  recent  criticisms  are  colored  by  partisan  bias 
and  accept  only  the  most  moderate  of  them,  we  must  still  believe 
that  the  delegate  system  has  long  since  gone  to  seed  in  Rhode 
Island ;  that  the  government  once  so  strikingly  popular  is  no  longer 
even ''representative,"  but  is  in  the  hands  of  a  small  oligarchy  that 
controls  the  legislature  and  dictates  legislation.1  Yet  the  very  con- 
ditions that  appear  to  have  made  this  result  possible  —  the  smallness 
of  area  and  population  —  would  seem  to  render  easy  still  the  success- 
ful workings  of  that  system  of  popular  legislation  which  is  the  glory 
of  Rhode  Island's  colonial  era.  Critics  of  the  Swiss  referendum  have 
maintained  that  it  is  adapted  only  to  small  communities  like  Switzer- 
land.2 But  in  Rhode  Island  the  population  is  less  than  one-sixth  as 
great  and  is  much  more  homogeneous  —  substantially  one  in  race 
and  language  and  without  marked  differences  in  religion.  Surely  if 
any  field  would  be  a  favorable  one  for  the  continued  use  of  the 
referendum,  it  ought  to  be  this.  Rhode  Island  might  do  worse  than 
to  seek  a  remedy  for  her  widely  published  evils  by  applying  the  lessons 
of  her  own  glorious  past. 

C.    Connecticut 
i.     The  Three  River  Towns 

The  immediate  occasion  of  the  settlement  of  Connecticut  was  the 
desire  of  a  portion  of  the  then  recent  colonists  of  Massachusetts  Bay 
for  a  form  of  government  in  which  the  people  would  be  accorded  a 
larger  share.3  The  government  of  the  last-named  colony  was  at  the 
time  oligarchical  in  character.  The  governor  and  his  court  of  as- 
sistants had  usurped  the  law-making  function,  and  so  limited  was  the 
electorate  that  "Judge  Story  approves  the  estimate  that  five-sixths  of 
the  people  were  still  disfranchised  as  late  as  1676."  4  The  inhabit- 

country  districts  which  poll  less  than  one -eleventh  of  the  vote  of  the  state."  This 
"  pointed  to  the  farmer  as  the  first  man  'to  corrupt ;  and  he  proved  corruptible  only 
because  the  strain  came  hardest  upon  him." 

1  Steffens,  McClure's  Magazine,  XXIV,  345. 

2  Cf.    Lowell,    "The    Referendum   in   Switzerland   and   in   America,"   Atlantic 
Monthly,  LXXIII,  523. 

3  See  Address  of  Rev.  Joseph  H.  Twichell  at  the  Quarto-millennial  of  the  First 
Constitution  of  Connecticut  (Hartford,   1889);    Johnston,  "Connecticut,  A  Study  of 
a  Commonwealth  Democracy"  (Boston  and  New  York,  1887),  17  et  seq.,  69  et  seq.; 
Borgeaud,  "The  Rise  of  Democracy  in  Old  and  New  England"  (Hill's  Trans.,  London, 
1894),  1 20. 

4  Johnston,  "  Connecticut,"  66. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA  89 

ants  of  some  of  the  newly  settled  plantations  evinced  a  tendency 
toward  freer  conditions,  which  appears  to  have  brought  them  into 
conflict  with  the  older  towns.  Led  by  Thomas  Hooker,  a  Puritan 
minister  whose  advanced  political  views  have  already  been  noticed  in 
connection  with  the  democratic  movement  in  England,  the  "new- 
comers," as  they  were  styled,  became  so  dissatisfied  with  the  ex- 
isting government  that  they  applied  to  the  General  Court  for  permission 
to  remove  and  settle  on  the  lower  Connecticut  River,  where  they 
might  be  free  to  put  their  political  theories  in  practice.1  At  first 
refused,  the  permission  was  finally  granted  on  condition  that  the 
emigrants  would  continue  under  the  jurisdiction  of  Massachusetts 
Bay,2  and  in  the  early  summer  of  1636,  New  England  witnessed  the 
unique  spectacle  of  the  migration  of  the  inhabitants  of  three  towns3 
in  order  that  they  might  enjoy  a  larger  liberty,  not  in  religious  but 
in  civil  affairs. 

Says  Alexander  Johnston  in  his  suggestive  work : 4  — 

"The  first  conscious  and  deliberate  effort  on  this  Continent  to  establish  the 
democratic  principle  in  control  of  government  was  the  settlement  of  Connecticut. 
.  .  .  The  birthplace  of  American  democracy  is  Hartford."5 

The  Fundamental  Orders 

Originating  under  these  novel  conditions,  it  is  not  strange  that 
the  new  colony  found  early  occasion  to  adopt  the  practice  of  popular 
legislation.  Within  three  years  after  the  settlement  the  male  in- 
habitants of  the  three  towns  —  Windsor,  Wetherford,  and  Hartford 
—  met  at  the  last  named  hi  mass  convention,  formed  "one  Publike 
State  or  Comonwelth,"  and  entered  "into  Combination  and  Confed- 
eration togather  ...  in  or  ciuell  Affaires  to  be  guided  and  gouerned 
according  to  such  Lawes,  Rules,  Orders  and  decrees  as  shall  be 
made,  ordered  and  decreed."  6  They  then  proceeded  to  adopt  an 
instrument,  consisting  of  eleven  articles  providing,  a  frame  of  govern- 

1  Johnston,  "  Connecticut,"  69  et  seq. 

2  Johnston,  "  Genesis   of   a   New   England    State,"    Johns   Hopkins   Historical 
Studies,  I,  Pt.  X,  ii. 

3  Johnston,  "Connecticut,"  24,  25. 

4  "Connecticut,  A  Study  of  a  Commonwealth  Democracy"  (Boston  and  New 
York,  1887),  Preface,  viii. 

6  Id-  73- 

"Colonial   Records  of   Connecticut,"    1636-1665   (Trumbull's  Ed.,   Hartford, 
1850),  21. 


QO  THE   PEOPLE'S   LAW 

ment  for  the  new  federation  and  guaranteeing  its  democratic  char- 
acter by  directing  that  the  election  of  magistrates  "shall  be  done  by 
the  whole  boddy  of  Freemen."  l  This  was  the  famous  instrument 
known  as  the  "Fundamental  Orders"  2  of  1639.  It  has  been  styled 
"the  first  written  constitution,  in  the  modern  sense  of  the  term,  as 
a  permanent  limitation  on  governmental  power,  known  in  history,  and 
certainly  the  first  American  constitution  of  government  to  embody  the 
democratic  idea."  3  It  is  in  this  last  element  rather  than  in  its 
written  form  that  its  interest  lies  here. 

"The  common  opinion  is,"  says  Johnston,4  "that  democracy  came  into  the 
American  system  through  the  compact  made  in  the  cabin  of  the  Mayflower,  though 
that  instrument  was  based  on  no  political  principle  whatever,  and  began  with  a 
formal  acknowledgment  of  the  king  as  the  source  of  all  authority.  It  was  the 
power  of  the  Crown  'by  virtue'  of  which  'equal  Laws'  were  to  be  enacted,  and 
the  'covenant'  was  merely  a  makeshift  to  meet  a  temporary  emergency;  it  had 
not  a  particle  of  political  significance  nor  was  democracy  an  impelling  force  in  it." 

But  the  Hartford  instrument  is  most  instructive  in  this  connec- 
tion, not  merely  in  recognizing  the  people  as  the  seat  and  source  of 
power,  but  in  exhibiting  the  people  as  legislators.  The  meeting 
which  adopted  this  instrument  was  an  assembly  of  the  entire  body 
of  the  freemen.5  It  is  "  we  the  Inhabitants  and  Residents  of  Windsor, 
Harteford  and  Wetherfield"  who  enact  the  laws  which  bear  the  title 
of  "Fundamental  Orders."  Each  of  the  eleven  articles  is  introduced 
by  the  formula,  "It  is  ordered,  sentenced  and  decreed,"  i.e.  by  us, 
the  said  inhabitants.  Twichell,  following  Leonard  Bacon,  says :  — 

"The  conventional  phrase,  'Be  it  enacted'  as  traditionally  prefixed  to  each 
section  of  a  parliamentary  statute,  bore  originally  a  meaning  of  petition;  may 
it  be  enacted,  i.e.  by  the  sovereign.  This  phrase  those  men  of  Wetherfield,  Wind- 
sor and  Hartford  rejected,  substituting  for  it  in  every  instance  'it  is  ordered,  sen- 

1  "  Colonial   Records  of   Connecticut,"   1636-1665   (Trumbull's  Ed.,  Hartford, 
1850),  25. 

2  See  Text,  Id.  20-25. 

3  Johnston,  "Connecticut"  (Boston  and  New  York,  1887),  63.     See  also  the  same 
author's  "Genesis  of  a  New  England  State,"  Johns  Hopkins  Historical  Studies,  I, 
Pt.  X,  14;   Fiske,  "Civil  Government,"  192;  TwichelPs  Address,  27. 

4  "  Connecticut,"  63. 

8  See  TwichelFs  Address,  26.  He  thinks  it  included  "probably  above  two  hun- 
dred in  number." 

That  they  met  as  a  sovereign  electorate  and  not  as  a  collection  of  towns  is  well 
brought  out  by  Professor  Charles  McLean  Andrews  in  an  article  on  "  The  Beginnings 
of  Connecticut  Towns,"  Annals  American  Academy  of  Political  and  Social  Science 
(Philadelphia,  1890),  I,  178  et  seq. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA  91 

tenced  and  decreed'  and  they  must  have  done  it  intelligently,  and  as  signifying 
that  they  held  their  action  subject  to  no  review,  confirmation  or  veto  by  any  out- 
side authority."1 

The  document  appears  to  have  been  drafted  in  advance  for  the 
assembly,  "  since  one  brief  winter  day  sufficed  to  bring  it  to  a  con- 
clusion." 2  Tradition  and  speculation  vacillate  between  ascribing  its 
authorship  to  Roger  Ludlow,  a  Windsor  lawyer,  author  of  the  Code 
of  1650,  and  to  Thomas  Hooker,  the  Puritan  preacher  and  statesman.3 
But  whichever  may  be  entitled  to  the  honor,  it  seems  clear  that  some 
one  performed  the  office  of  a  convention  and  framed  the  instrument 
which  the  freemen,  in  their  sovereign  capacity,  passed  upon  and 
approved.4  The  enactment  of  the  Fundamental  Orders,  therefore, 
includes  the  two  essential  steps  of  modern  constitution-making. 
Hence,  if  the  Hartford  instrument  was  the  first  written,  it  was  also 
the  first  popularly  ratified  American  constitution.  When  the  people 
of  New  England,  a  century  and  a  half  later,  were  adopting  new  con- 
stitutions they  could  look  back  upon  many  precedents  in  popular 
legislation  but  none  more  conspicuous  than  this  first  Connecticut  in- 
stance. The  submission  of  constitutions  in  the  Revolutionary  era 
was  not  a  novel  proceeding ;  it  was  rather  the  fruit  of  ripened  political 
experience,  nowhere  more  strikingly  exemplified  than  in  the  adoption 
of  the  Fundamental  Orders  of  Connecticut. 

The  practice  of  popular  participation  in  the  making  of  laws, 
thus  naturally  and  easily  inaugurated  in  Connecticut,  was  not  aban- 
doned with  the  adoption  of  the  "Fundamental  Orders."  It  seems 
to  have  been  recognized  from  the  first  that  any  changes  in  the  instru- 
ment should  be  passed  upon  by  the  freemen.  An  interpretation  of 
it  was,  indeed,  announced  by  the  General  Court  in  1643 '»  but  even 
this  was  in  the  direction  of  leaving  the  matter  to  the  people,  as  the 
following  recital  shows:  — 

"Whereas  in  the  fundamentall  Order  yt  is  said  (that  such  who  have  taken 
the  Oath  of  fidelity  and  are  admitted  inhabitants)  shall  be  alowed  as  quallified 

1  Twichell's  Historical  Address  at  the  Celebration  of  the  Two  Hundred  and  Fiftieth 
Anniversary  (Hartford,  1889),  30. 
3  Id.  27. 

3  Id.  43,  46. 

4  "All  the  people  of  the  colony,  or  as  many  as  could  be  present,  met  at  Hartford 
and  adopted  the  constitution  which   their  leaders   had  framed." — Andrews,  "The 
Beginning  of  Connecticut  Towns,"  Annals  American  Academy  of  Political  and  Social 
Science  (Philadelphia,  1890),  I,  179. 


92  THE   PEOPLE'S   LAW 

for  chuseing  of  Deputyes,  The  court  declares  their  judgment,  that  such  only 
shall  be  counted  admitted  inhabitants  who  are  admitted  by  a  generall  voate  of 
the  major  prte  of  the  Towne  that  receaveth  them."  1 

The  first  article  of  the  orders  had  fixed  the  second  Thursday  in 
April  as  the  day  of  election.  In  1646  a  change  was  announced  as 
follows :  — 

"The  Freemen  finding  it  inconuenient  to  attend  the  Court  of  Election  the 
second  Thursday  in  Aprill  haue  ordered  yt  for  hereafter  to  be  keept  the  third 
Thursday  in  May,  and  the  Magistrats  to  hold  vntill  that  day."  2 

Here  it  is  "the  freemen"  and  not  merely  the  general  court  which 
orders  the  change. 

Other  clauses  in  the  Fundamental  Orders  restricted  the  term 
of  all  magistrates  to  one  year,  and  provided  "that  noe  prson  be 
chosen  Gouernor  aboue  once  in  two  yeares."  3  In  1660,  when  John 
Winthrop,  Jr.,  was  governor,  his  service  appears  to  have  been  so 
satisfactory  that  a  general  desire  was  expressed  for  his  reelection.4 
Accordingly  the  following  proceedings  in  the  General  Court  are 
reported  on  April  n,  of  the  year  last  named :  — 

"This  Court  considering  the  necessity  of  altering  that  perticuler  in  ye  3d  5 
Law,  respecting  the  choice  of  a  Gouernor,  vidz:  That  noe  person  be  chosen 
Gour.  above  once  in  two  yeares,  haue  thought  meet  to  propound  it  to  ye  considera- 
tion of  ye  freemen  of  this  collony  and  doe  order  the  Secretary  to  insert  the  same  in 
the  Warrts  for  ye  choice  of  Deputies,  and  request  the  return  of  ye  remote  plantas : 
(yt  vse  to  send  Proxies  at  ye  Election  by  their  Deputies.  And  it  is  desired  that 
their  proxies  may  be  ordered  according  to  what  may  be  concluded  on  about  ye 
ordr  forementioned."  8 

Here  we  have  a  complete  example  of  the  framing  and  submission 
of  a  constitutional  amendment.  A  little  further  on  the  ratification 
is  thus  recorded:  — 

"It  was  voted  by  the  freemen  that  ye  perticuler  in  ye  4th  Law  respecting 
the  choice  of  the  Gouernor,  should  be  altrd,  and  that  for  future  there  shall  be 
liberty  of  a  free  choice  yearely,  either  of  ye  same  person  or  another,  as  may  be 
thought  meet,  without  priudice  to  ye  law,  or  breach  thereoff."  7 

"Colonial  Records  of  Connecticut"  (Trumbull's  Ed.,  Hartford,  1850),  I,  96. 
Id.  140. 
Id.  21,  22. 

See   Baldwin,  "The  Three   Constitutions  of  Connecticut,"  New  Haven    His- 
torical Society  Papers,  V,  182. 

This  should  read  4th.     Correction  is  made  in  recording  the  vote. 
"Colonial  Records  of  Connecticut"  (Trumbull's  Ed.,  Hartford,  1850),  I,  346. 
7  Id.  347- 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA  93 

Judge  Baldwin  says :  *  — 

"This  early  action  of  the  freemen  of  Connecticut  was  the  origin  of  the  modern 
referendum  rather  than,  as  Borgeaud,  in  his  work  on  American  Constitutions, 
has  it,  the  Constitution  of  1818  itself." 

More  will  need  to  be  said  of  this  hereafter. 

2.    The  New  Haven  Colony 

The  first  settlers  of  New  Haven  represented  a  different  element 
of  Puritanism  from  that  of  the  other  Connecticut  colonists.  The 
former  came  almost  directly  from  England,  stopping  a  short  time 
only  in  Boston,  and  the  colony  had  acquired  its  organization,  its  indi- 
viduality, and  its  potential  characteristics  in  the  mother  country.  A 
recent  historian  of  the  colony  begins  his  narrative  as  follows : 2  — 

"As  the  modern  English  vestry  or  parish-meeting  is  the  nearest  lineal  repre- 
sentative of  the  ancient  tun-gemot,  so  the  municipality  of  New  Haven  traces  its 
descent  from  the  Parish  of  St.  Stephen,  Coleman  street,  London.  That  Parish 
was  once  the  channel  for  those  elements  of  individual  thought  and  personal  influ- 
ence that  have  given  life  and  strength  to  the  miniature  republic  of  to-day.  In 
the  assemblage  of  St.  Stephen's  Parish  on  the  6th  of  October,  1624,  New  Haven's 
town  meeting  was  a  nascent  possibility.  The  parishioners  of  that  church  possessed 
the  valuable  privilege  of  choosing  their  own  vicar  by  popular  election.  The  con- 
gregation was  large  and  composed  of  that  middle  class  wherein  lay  the  vigor 
and  the  hope  of  the  Puritan  cause.  Many  of  them  were  traders  or  wealthy 
merchants,  enemies  alike  to  Spaniards  and  to  Prelatists.  On  that  memorable 
October  day  such  men  met  together  in  parochial  conclave,  and,  of  their  own  free 
will,  by  an  almost  unanimous  vote,  elected  the  Rev.  John  Davenport  to  be  the 
incumbent  at  St.  Stephen's." 

In  other  words,  these  colonists,  like  those  of  New  Plymouth,  were 
familiar  with  the  workings  of  the  democratic  principle  in  their  con- 
gregational polity  long  before  departing  for  their  new  homes.  This 
fact  is  significant  in  the  light  of  their  later  history,  for  one  of  their 
first  acts  upon  arriving  at  Quinnipiack,  which  had  been  selected  as  the 
site  of  the  settlement,  was  an  assembly  of  the  free  planters  and  the 
adoption  of 

"  The  Plantation  Covenant  " 

The  name  of  this  instrument  is  thus  explained  by  the  first  secre- 
tary of  the  colony :  — 

"  Modern  Political  Institutions  "  (Boston,  1888),  48. 

2  Levermore,  "The  Republic  of  New  Haven,"  Johns  Hopkins  University  Studies 
(Baltimore,  1886),  5. 


94 


THE   PEOPLE'S   LAW 


"This  covenant  was  called  a  plantation  covenant  to  distinguish  it  from  a 
Church  covenant,  'wch  could  nott  att  thatt  time  be  made,  a  church  nott  being 
then  gathered,  butt  was  deferred  till  a  church  might  be  gathered  according  to 
God.' "  1 

How  clearly  does  this  illustrate  the  close  connection  between 
these  church  covenants  and  the  crude,  popular  constitutions  of  early 
New  England.  In  this  case  the  church  covenant  should  normally 
have  been  adopted  first,  and  would  have  been  had  the  church  been 
organized.  Accidentally  the  civil  constitution  took  precedence  in 
point  of  time,  but  it  so  much  resembled  the  church  covenant  that 
a  special  name  had  to  be  devised  in  order  to  distinguish  between 
them.  Our  knowledge  of  the  character  of  this  "Plantation  Cove- 
nant" is  mainly  based  on  a  passage  in  the  record  of  the  subsequent 
year  which  recites : — 

"Whereas,  there  was  a  cout.  [covenant]  solemnly  made  by  the  whole  assembly 
of  free  planters  of  this  plantation  the  first  day  of  extraordenary  humiliation  wch 
we  had  after  wee  came  together,  thatt,  as  in  matters  that  concerne  the  gathering 
and  ordering  of  a  church,  so  likewise  in  all  publique  offices  wch  concerne  civill 
order,  as  choyce  of  magistrates  and  officers,  making  and  repealing  of  lawes  devide- 
ing  allottments  of  inheritance,  and  all  things  of  like  nature,  we  would  all  of  us 
be  ordered  by  those  rules  wch  the  scriptures  hold  forth  to  us. "  2 

"This,"  says  Johnston,3  "...  furnished  the  lines  on  which  the  future 
constitution  was  to  be  constructed.  It  had,  also,  peculiar  effects  which  deserve 
notice,  though  they  may  not  be  apparent  on  the  surface.  It  practically  abolished 
the  excrescences,  such  as  entails  and  primogeniture,  which  had  grown  up  on  the 
English  Common  Law.  It  was  almost,  if  not  quite,  a  declaration  of  independence ; 
and  it  made  certain  that  nothing  short  of  direct  and  overmastering  force  could 
make  the  commonwealth  anything  but  a  republic." 

But  the  clear  recognition  of  the  right  of  the  whole  people  to 
make  their  own  laws  is  one  of  the  most  significant  features  of  this 
instrument,  important  as  it  was  intrinsically  as  a  piece  of  legislation. 

The  Fundamental  Agreement 

"  The  4th  day  of  the  4th  moneth  called  June,  1639,  all  the  free  planters  as- 
sembled together  in  a  ge(neral)  meetinge  to  consult  about  settling  ciuill  Gouermnt 
according  to  God,  and  about  the  nomination  of  persons  thatt  might  be  founde 

1  Levermore,  "The  Republic  of  New  Haven,"  Johns  Hopkins  University  Studies 
(Baltimore,  1886),  13. 

2  Id. 

3  "Connecticut,  A  Study  of  a  Commonwealth  Democracy"  (Boston  and  New 
York,  1887),  189,  190. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA  95 

by  consent  of  all  fittest  in  all  respects  for  the  foundaco(n)  worke  of  a  church  w(hich) 
was  intend  to  be  gathered  in  Quinipieck.' ' l 

This  recital  opens  the  formal  record  of  civic  life  in  New  Haven. 
Church  and  state  were  not  yet  differentiated.  The  assembly,  though 
held  in  a  barn,  was  opened  with  prayer,  and  the  pastor,  John 
Davenport,  was  a  prominent  figure  in  its  deliberations.  Indeed, 
he  performed  the  work  of  a  draftsman  or  framer,  for  he  had  pre- 
pared in  advance  a  series  of  proposals  or  "quaeries, "  which  were 
thereupon  submitted  to  the  assembly,  and  the  whole  proceeding 
has  the  form  of  a  genuine  plebiscitum.  The  record 2  recites 
that :  — 

"  Mr.  Robt.  Newman  was  intreated  to  write  in  carracters  and  to  read  dis- 
tinctly and  audibly  in  the  hearing  of  all  the  people  whatt  was  propounded  and 
accorded  on  thatt  it  might  appeare  that  all  consented  to  matters  propounded 
according  to  words  written  by  him." 

The  first  of  these  inquiries  was :  — 

"Whether  the  Scripturs  doe  holde  forth  a  perfect  rule  for  the  directio  and 
gouernmt  of  all  men  in  all  duet(ies)  wch  they  are  to  performe  to  God  and  men 
as  well  in  the  gourmt  of  famylyes  and  comonwealths  as  in  matters  of  the  chur. " 3 

In  passing  on  this  question  the  assembly  appears  to  have  applied 
the  Calvinistic  doctrine  of  " common  assent"  in  its  extremest  form,  for 
the  record  reads :  — 

"This  was  assented  vnto  by  all,  no  man  dissenting,  as  was  expressed  by  hold- 
ing up  of  hands.  Afterwards  itt  was  read  our  to  them  thatt  they  might  see  in 
whatt  words  their  vote  was  expressed:  They  againe  expressed  their  consent 
thereto  by  holdeing  up  their  hands,  no  man  dissenting. "  *  . 

This  same  method  was  followed  with  each  of  the  series  which 
was  voted  on  separately.  The  second  plebiscite  related  to  the  "Plan- 
tation Covenant"  already  discussed  and  "Demannded  whether  all 
the  free  planters  doe  hold  themselves  bound  by  that  covenant." 
This  was  not  only  confirmed  by  the  double  show  of  hands,  but 
some  who  had  not  been  present  when  the  covenant  was  originally 
adopted  now  expressed  their  formal  assent.5 

By  the  third  proposal 


ii. 


1  "New  Haven  Colonial  Records,"  1636-1649,  edited  by  Hoadley  (Hartford,  1857), 

2  Id.  ii,  12.  » Id.  12.  «  Id.  »  Id.  13. 


96  THE   PEOPLE'S   LAW 

"Those  who  have  desired  to  be  receiued  as  free  planters,  and  are  settled  in 
the  plantatio  with  a  purp(ose)  resolutio  and  desire  thatt  they  may  be  admitted 
into  chur.  felloe  according  to  Christ  as  soone  (as)  God  shall  fitt  them  there-vnto ; 
were  desired  to  express  itt  by  holdeing  vp  of  hands."1  — 

This  shows  that  the  assembly  was  sitting  as  an  ecclesiastical 2  not 
less  than  as  a  civil  body,  and  led  up  naturally  to  the  fifth 3  quaery, 
which  was :  — 

"Whether  Free  Burgesses  shalbe  chosen  out  of  chur.  members  they  thatt 
are  in  the  foundat(ion)  worke  of  the  church  being  actually  free  burgesses,  and 
to  chuse  to  themselues  out  of  the  li(ke)  estate  of  church  fellowp  and  the  power  of 
chuseing  magistrates  and  officers  from  among  themselues  and  the  power  off  make- 
ing  and  repealing  lawes  according  to  the  worde,  and  the  devideing  of  inheritances 
and  decideing  of  differences  thatt  may  arise,  and  all  the  buisnesses  of  like  nature 
are  to  be  transacted  by  those  free  burgesses. "  4 

The  submission  of  this  proposal  occasioned  apparently  the  first 
real  debate  of  the  session.  After  the  usual  second  vote  had  been 
taken  "one  man,"  supposed  to  have  been  Rev.  Samuel  Eaton,5  arose 
and  expressed  his  dissent.  He  was  not  opposed  to  the  religious 
qualification:  "Onely  at  this  he  stuck,  thatt  free  planters  ought  nott 
to  giue  this  power  out  of  their  hands."  Q 

Here  we  find  an  early  champion  of  direct  popular  participation 
in  law-making  as  opposed  to  the  delegation  of  legislative  power. 
With  foresight  and  discernment  far  in  advance  of  his  time  this  Puri- 
tan minister  of  the  early  seventeenth  century  seems  to  have  realized 
that  his  fellow-colonists  enjoyed  a  valuable  and  inherent  privilege 

1  "New  Haven  Colonial    Records,"   1636-1649,  edited   by  Hoadley  (Hartford, 

1857),  13- 

2  "  The  first  leaders  of  the  colony  of  New  Haven  represent  the  clerical  tendencies 
of    Congregationalism.       The    government    organized    by   them  was    an    absolute 
theocracy."  —  Borgeaud,  "Rise  of  Democracy  in  Old  and  New  England"  (London, 
1894),  134,  135. 

3  In  the  fourth,  "All  the  free  planters  were  called  vpo  to  expresse  whether  they 
held   themselues  bound  to  esta(blish)  such  ciuill  order  as  might  best  conduce  to 
the  secureing  of  the  pureity  and  peace  of  the  ordina(nces)  to  themselues  and  their 
pastoreity  according  to   God." — "New  Haven  Colonial  Records"  (Hartford,  1857), 

i3»  J4- 

4  Id. 

6  Atwater,  "History  of  the  Colony  of  New  Haven"  (New  Haven,  1881),  99,  note. 
"  Mr.  Samuel  Eaton  stood  up  to  vindicate  in  that  barn  his  kinship  with  Hampden  and 
Vane  in  Parliamentary  Halls,  and  to  display  a  dim  sense  of  the  greater  liberties  toward 
which  greater  Englishmen  were  struggling." — Levermore,  "The  Republic  of  New 
Haven,"  Johns  Hopkins  University  Studies  (Baltimore,  1886),  19. 

8  "New  Haven  Colonial  Records"  (Hartford,  1857),  14. 


POPULAR    RATIFICATION    IN   COLONIAL   AMERICA          97 

which  it  was  a  mistake  so  lightly  to  surrender.  He  urged  at  least 
"thatt  all  the  free  planters  ought  to  resume  this  power  into  their 
owne  hands  againe  if  things  were  nott  orderly  carryed."  l  But  his 
plea  was  unavailing.  After  some  further  discussion  a  third  vote  was 
taken  with  the  same  result  as  before.  "The  free  planters  of  Quinni- 
piack  had  voluntarily  renounced  their  sovereign  rights  and  transformed 
their  democracy  into  an  aristocracy."  2 

In  the  course  of  the  debate  over  Mr.  Eaton's  proposal  a  sup- 
porter of  the  sixth  " quaere"  as  submitted  referred  to  the  London 
companies  or  guilds  which  "chuse  the  livereyes  by  whom  the  pub- 
lique  magistrates  are  chosen."  3 

"This,"  says  Levermore,4  "was  likely  to  be  a  convincing  illustra- 
tion to  his  audience  of  London  merchants."  There  are  other  evi- 
dences, too,  that  the  customs  and  practices  of  the  ancient  guilds  were 
before  the  minds  of  the  New  Haven  colonists  as  a  model.  The 
record  of  this  interesting  and  historic  meeting  closes  with  the  follow- 
ing recital :  — 

"Whereas  there  was  a  foundamentall  agreemt  made  in  a  generall  meeting 
of  all  the  free  planters  of  this  towne,  on  the  4th  of  the  fowerth  moneth  called  June, 
namely  that,  church  members  onely  shall  be  free  burgesses,  and  they  onely  shall 
chuse  among  them  selues  magistrates  and  officers  to  ha(ve)  the  power  of  trans- 
acting all  publique  ciuill  affayres  of  this  plantatio,  of  makeing  and  repealing] 
lawes,  devideing  inherritances,  decideing  of  differences  thatt  may  arise,  and 
doeing  all  things  and  businesses  of  like  nature.  Itt  was  therefore  ordered  by  all 
the  said  free  planters  thatt  all  those  thatt  hereafter  should  be  receiued  as  planters 
into  this  plantatio  should  allso  submitt  to  said  foundamentall  agreemt  and  testifie 
the  same  by  subscribeing  their  names  vnder  the  names  of  the  aforesaid  planters 
as  followeth."  5 

Here,  it  will  be  seen,  was  the  identical  requirement  which  the  guilds 
made  that  newly  admitted  members  must  subscribe  to  the  regula- 
tions of  the  guild,  as  well  as  that  employed  in  the  making  of  church 
covenants.  The  founders  of  the  New  Haven  Colony  were  common- 
wealth builders  for  the  future,  but  using  old  world  materials. 

1  "  New  Haven  Colonial  Records  "  (Hartford,  1857),  14. 

2  Levermore,  "The  Republic  of  New  Haven,"  Johns  Hopkins  University  Studies 
(Baltimore,  1886),  18. 

3  "New  Haven  Colonial  Records"  (Hartford,  1857),  14. 

4  "The  Republic  of  New  Haven,"  Johns  Hopkins  University  Studies  (Baltimore, 
1886),  19. 

5  "New  Haven  Colonial  Records"  (Hartford,  1857),  17. 


98  THE  PEOPLE'S   LAW 

3.    The  Guilford  Colony 

The  history  of  one  other  Connecticut  town  deserves  brief  men- 
tion as  illustrating  the  development  of  the  covenant  idea.  In  the 
same  year,  1639,  when  the  inhabitants  of  New  Haven  and  the  three 
river  towns  were  framing  their  historic  documents,  the  colonists  who 
afterward  settled  Guilford  subscribed,  while  at  sea  and  before  reach- 
ing America,  the  following :  — 

"June  i.  Individuals  who,  the  next  September,  purchase  Menunkatuck, 
afterwards  Guilford,  enter  into  the  following  covenant:  'We  whose  names  are 
hereunder  written,  intending  by  God's  gracious  permission  to  plant  ourselves 
in  New  England,  and,  if  it  may  be,  in  the  southerly  part  about  Quinnipiack,  we 
do  faithfully  promise  each  to  each,  for  ourselves  and  our  families,  and  those  that 
belong  to  us,  that  we  will,  the  Lord  assisting  us,  sit  down  and  join  ourselves  to- 
gether in  one  entire  plantation,  and  to  be  helpful  each  to  the  other  in  any  common 
work,  according  to  every  man's  ability,  and  as  need  shall  require;  ...  As  for 
our  gathering  together  in  a  church  way,  and  the  choice  of  officers  and  members 
to  be  joined  together  in  that  way,  we  do  refer  ourselves  until  such  time  as  it  shall 
please  God  to  settle  us  in  our  plantation. "  l 

In  this  instrument  we  mark  a  transitional  stage  between  the 
church  covenant  and  the  town  compact.  It  combines  features  of 
both,  and  while  those  of  the  former  predominate,  the  document  is 
clearly  preparatory  to  the  complete  application  of  the  covenant  idea 
in  the  government  of  the  new  colony.  Comparing  its  history  with 
that  of  the  others  above  reviewed,  we  may  well  believe  with  Professor 
Andrews2  "that  the  Connecticut  constitution  was  a  growth,  as  much 
as  the  Federal  constitution,  and  that  its  roots  run  far  back  into  the 
history  of  England  as  well  as  of  Massachusetts  Bay." 

D.    New  Hampshire 

There  was  one  other  New  England  colony  which  formed  part  of 
the  original  thirteen.  The  principle  of  popular  legislation  found 
lodgment  in  New  Hampshire,  though  less  perfectly  than  in  some  of 
its  neighbors.  In  1639,  the  year,  it  will  be  remembered,  of  the 
adoption  of  the  "  Fundamental  Orders  "  in  Connecticut,  the  colonists 
of  Exeter,  in  what  was  afterward  known  as  New  Hampshire,  met 
and  adopted  what  they  termed  "The  Combination,"  and  which  like 

1  Felt,  "Ecclesiastical  History  of  New  England,"  I,  406,  407. 

2  "The  Beginning  of  the  Connecticut  Towns,"  Annals  American  Academy  of 
Political  and  Social  Science,  I,  190. 


POPULAR   RATIFICATION    IN   COLONIAL  AMERICA          99 

those  of  the  other  colonies  was  really  a  constitution.  They  recite 
that- 

"We  .  .  .  loyall  subjects"  of  the  king,  "brethern  of  the  Church  at  Exeter 
.  .  .  combine  ourselves  together  to  erect  and  set  up  amongst  us  such  a  govern- 
ment as  shall  be  to  our  best  discerning,  agreeable  to  the  will  of  God. "  1 

They  agree  — 

"to  submit  ourselves  to  such  godly  and  Christian  laws  as  are  established  in  the 
Realme  of  England  to  our  best  knowledge  &  to  all  other  laws  wh  shall,  upon 
good  grounds  be  made  &  inacted  amongst  us."2 

It  is  significant  that  this  instrument  was  drafted  in  advance  like 
the  "Fundamental  Orders,"  and  submitted  to  the  assembly  for  ap- 
proval and  adoption.  In  this,  as  in  the  other  town  democracies  of 
New  England,  laws  were  made  by  the  entire  body  of  freemen,  though 
here  they  were  subject  to  the  approval  of  the  chief  officer  of  the 
colony  who  was  called  the  "  Ruler, "  but  who  was  chosen  by  popular 
vote.3 

Dover  was  another  New  Hampshire  town  where  popular  legisla- 
tion was  in  vogue.  Its  inhabitants  in  1640  "  agreed  to  submit  them- 
selves to  the  laws  of  England  and  to  such  others  as  should  be  en- 
acted by  a  majority  of  their  number  until  the  royal  pleasure  should 
be  known."  4 

E.     The  New  England  Town  Meeting 

But  it  may  be  objected  that  this  array  of  instances  of  popular 
legislation  and  compact-making  belongs  to  a  period  considerably  ante- 
dating that  of  the  first  state  constitutions,  and  that  no  actual  connec- 
tion is  established  between  the  latter  and  the  former.  The  objection 
would  not  be  weighty  if  true.  Object  lessons  like  these  are  not  lost 
in  two  or  three  generations,  and  it  is  natural  for  a  people  to  turn  back 
to  them  in  times  of  emergency  when  precedents  are  needed.  But 
the  truth  is,  popular  legislation  did  not  cease  with  this  early  period. 
While  the  central  government  became  "  representative  "  in  character, 
local  institutions  retained  the  feature  of  direct  popular  participation 
and  the  democratic  customs  of  early  New  England  were  continued, 
up  to  the  revolution  and  after,  through  the  town  meeting. 

It  would  not  be  profitable  here  to  discuss  the  mooted  question  as 

1  New  Hampshire  Provincial  Papers,  I,  132,  where  it  is  printed  in  full.  2  Id. 

3  Bell,  "History  of  Exeter,"  18.  *  Harvard  Law  Review,  XIV,  137. 


100  THE   PEOPLE'S   LAW 

to  how  far  this  interesting  institution  is  a  transplantation  from  the 
older  world,  and  how  far  a  native  product  of  the  soil.  It  may  be 
assumed,  on  the  one  hand,  that  it  reproduced  many  features  of  the 
moot  or  popular  assembly  of  the  old  Germanic  mark  and  Saxon  tun.1 
But  to  these  were  certainly  added  the  characteristics  of  a  Puritan 
congregational  assembly.  Just  as  the  town  was,  in  many  instances, 
the  transplantation  of  a  Puritan  church,2  so  the  town  meeting  was 
at  first  little  more  than  the  assembled  congregation.  In  one  of  the 
earliest  of  these  meetings  at  Salem,  in  1629,  a  pastor  and  a  teacher 
of  the  congregation  were  selected  by  written  ballot3  while  a  sub- 
sequent assembly  of  the  same  sort  chose  the  neatherd  to  tend  the 
cattle  on  the  common  pasture  land.4  Thus  the  town  meeting  was  a 
part  of  the  Puritan  movement  —  a  link  in  the  long  chain  of  develop- 
ment from  Calvinism.5  But  Calvinism  itself  had  appropriated  the 
fruits  of  Swiss  democracy.  Ultimately,  after  all,  we  reach,  through 
either  source,  the  Teutonic  folkmoot. 

But  if  the  town  meeting  was  cast  in  an  ecclesiastical  mould,  its 
business  was  largely  of  a  secular  character.  Here  were  levied  the 
taxes  for  all  purposes,6  —  the  maintenance  of  the  church,  including 
the  salary  of  the  pastor  and  the  repair  of  the  "meeting-house,"  the 
support  of  the  schools,  the  relief  of  the  poor,  bounties  for  the  de- 
struction of  wild  animals,  etc.  In  this  feature  the  town  meeting, 
participated  in  by  all,  was  doing  the  work  of  a  modern  municipal 
council  or  county  board.  Here,  especially  in  its  early  history,  were 
determined  all  questions  relating  to  the  use  and  disposition  of  the 


1  See  Adams,  "The  Germanic  Origin  of  New  England  Towns,"  Johns  Hopkins 
University  Studies  (Baltimore,  1882),  I,  45 ;  Channing,  "Town  and  County  Government 
in  the  English  Colonies  of  North  America,"  Id.  II,  437. 

2  See  69,  71,  93,  ante.     "The  New  England  township  was  an  accidental  grouping 
of  as  many  church  members  as  could  reside  within  reach  of  one  meeting  house."  — 
The  Nation,  XLIX,  277. 

"Church  and  town  were  one."  —  Adams,  "Three  Episodes  of  Massachusetts 
History"  (Boston,  1892),  II,  648. 

3  Mowry,  "Influence  of  John  Calvin  on  the  New  England  Town  Meeting,"  New 
England  Magazine  (new  ser.),  II,  107.     This  is  also  interesting  as  the  first  instance  of 
the  use  of  the  written  ballot  in  America.     See  Papers  American  Historical  Association 
(New  York,  1891),  V,  178,  185. 

4  Mowry,  108. 
6  Id. 

8  Howard,  "Local  Constitutional  History"  (Baltimore,  1889),  64,  65;  Foster, 
"Town  Government  in  Rhode  Island,"  Johns  Hopkins  University  Studies  (Baltimore, 
1886),  IV,  87. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA         ioi 

common  lands  and  the  care  of  the  town  herd,1  the  survey  of  boundaries, 
and  erection  of  fences.  Here,  also,  were  regulated  such  important 
matters  of  local  administration  as  the  establishment  of  roads  and 
ways,2  and  the  support  of  the  poor  and  insane.3  In  Rhode  Island 
the  town  meeting  was  also  a  judicial  body,4  trying  offenders,  effecting 
partition  of  land,  and  determining  matters  of  probate.5 

The  town  meeting  was  likewise  the  school  district  meeting.  It 
not  only  fixed  the  rate  for  maintaining  the  school,  but  in  some  in- 
stances it  chose  the  schoolmaster.6  In  others  it  appointed  "wardens " 
or  overseers  for  this  purpose,  but  in  such  a  case  it  took  care  to  apply 
the  Calvinistic  doctrine  of  " common  assent"  by  providing  that  the 
chosen  one  was  "not  to  be  admitted  into  the  place  of  Schoolem.  with- 
out the  Generall  cosent  of  the  Inhabitants  or  the  maior  p'te  of  them."  7 
The  town  meeting  fixed  the  period  and  even  the  hours  of  keeping 
school,8  the  subjects  of  instruction,9  and  the  mode  of  discipline.10 

"Nothing  connected  with  the  civil  or  religious  life  of  the  com- 
munity," it  has  been  remarked,11  "seems  to  have  been  too  minute  to 
escape  the  attention  of  the  town  meeting."  Regulations  concerning 
the  treatment  of  dogs,12  the  construction  of  church  pews,  and  the  seat- 
ing of  the  congregation  on  Sundays13  are  interspersed  with  measures 
of  the  most  far-reaching  importance  and  historic  interest. 

Finally,  the  town  meeting  was  "an  electoral  and  directing  as- 
sembly." 14  Here  were  chosen  all  the  officers,  town  and  colonial, 
including  "deputies"  to  the  general  court.  And  these  latter  "were 


1  Howard,    "Local   Constitutional  History,"  93;    Adams,   "Three  Episodes  of 
Massachusetts  History"  (Boston,  1892),  II,  821,  823. 

2  Howard,  "  Local  Constitutional  History,"  207. 

3  Adams,  "Three  Episodes  of  Massachusetts  History,"  II,  Chap.  VIII.     The  pro- 
visions for  this  purpose  appear  to  have  been  very  meagre. 

Thus  preserving  or  reviving  the  functions  of  the  Saxon  shiremoot. 
Durfee,  "Gleanings  from  the  Judicial  History  of  Rhode  Island"  (Historical 
Tracts,  No.  18). 

Dorchester  Town  Records,  136-137. 

Id.  54-56. 

Id.  »Id.  10Id. 

11  Howard,  "Local  Constitutional  History"  (Baltimore,  1889),  72. 

12  See  an  amusing  excerpt  from  the  Ipswich  records  in  Professor  Hart's  "Colonial 
Town  Meeting,"  "Practical  Essays  on  Government"  (New  York,  1893),  44. 

13  "Worcester  Town  Records"  (1740-1753),  98,  100;   id.  (1753-1783),  201,  206. 
An  account  of  similar  regulations  at  Braintree  is  given  by  Adams,  "Three  Episodes  of 
Massachusetts  History"  (Boston,  1892),  II,  823. 

14  Hart,  "Practical  Essays  on  Government,"  134. 


102  THE   PEOPLE'S   LAW 

in  actual  fact  delegates  rather  than  representatives."  1  In  the  meet- 
ings at  which  they  were  chosen  the  important  questions  likely  to 
come  before  the  legislators  were  discussed,  and  the  deputy  was  often 
instructed  by  vote  or  committee  as  to  what  his  attitude  should  be.2 
"The  celebrated  'instructions'  of  this  assembly  [the  Boston  town 
meeting  in  1764]  led  to  the  Congress  of  1765."  3  In  the  course  of 
time  the  delegates  even  sought  instructions  from  the  towns,  and  we 
shall  find  instances4  of  great  delegate  bodies  adjourning  in  order 
that  their  members  might  go  back  to  the  town  meetings  to  "take  the 
sense"  of  the  people.  From  such  a  custom  it  was  but  a  step  to  the 
practice  of  submitting  formal  propositions  to  the  town  meetings  for 
their  approval  or  rejection.  This  step  was  taken  when  the  New 
England  states  framed  their  first  constitutions.  The  town  meeting 
kept  alive  popular  familiarity  with  legislation,  established  the  doc- 
trine that  the  people  were  the  source  of  authority,5  and  educated  the 
voters  of  New  England  up  to  a  point  where  the  transition  to  popular 
constitution-making  was  so  natural  and  easy  as  to  be  almost  in- 
evitable. 

Comparison  with  Other  Colonies 

When  we  turn  to  the  American  colonies  outside  of  New  England 
we  find  in  most  of  them  a  condition,  as  regards  local  institutions,  in 
marked  contrast  with  that  just  described.  In  none  of  the  southern 
colonies  was  there  a  town  meeting  in  the  New  England  sense.  In 

1  Mowry,  "The  Influence  of  John  Calvin  on  the  New  England  Town-Meeting," 
New  England  Magazine  (new  ser.)  II,  101. 

2  Id.     Cf.  Hart,  "Practical  Essays  on  Government,"  144,  145 ;  Referendum  News, 

1,24- 

3  Howard,  "  Local  Constitutional  History,"  74.     Cf .  Referendum  News,  I,  24. 

4  Notably  the  conventions  in  New  Hampshire  and  Rhode  Island  called  to  ratify 
the  Federal  Constitution. 

The  machinery  of  the  town  meeting  was  also  employed  in  the  submission  of  pro- 
posed constitutions  and  amendments,  as  in  the  organization  of  the  new  state  of  Maine 
and  in  the  amendment  clause  (Art.  XI)  of  the  Connecticut  constitution. 

6  "The  independence  of  the  township  was  the  nucleus  round  which  the  local  in- 
terests, passions,  rights,  and  duties  collected  and  clung.  It  gave  scope  to  the  activity 
of  real  political  life,  thoroughly  democratic  and  republican.  The  colonies  still  recog- 
nized the  supremacy  of  the  mother  country ;  monarchy  was  still  the  law  of  the  state ; 
but  the  republic  was  already  established  in  every  township.  .  .  .  The  American  Revo- 
lution broke  out,  and  the  doctrine  of  the  sovereignty  of  the  people  came  out  of  the 
townships  and  took  possession  of  the  state.  Every  class  was  enlisted  in  its  cause ;  bat- 
tles were  fought  and  victories  obtained  for  it ;  it  became  the  law  of  laws."  —  De 
Tocqueville,  "Democracy  in  America,"  I,  50,  70. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA         103 

Maryland  1  and  Virginia2  what  were  called  ''towns"  were  of  late 
development,  never  became  democratic  institutions,  and  their  officers 
were  not  even  elective.  It  is  true  that  in  both  of  these  colonies  as 
well  as  in  the  Carolinas  3  there  was  a  parish  meeting.  But  the  parish 
"was  employed  chiefly  as  an  ecclesiastical  organization,"  4  and  even 
its  vestries  were  sometimes  appointed.5  The  parish  meeting,  too, 
reversed  the  conditions  existing  in  the  New  England  town  meeting. 
For  while  the  business  of  the  former  was  mainly  ecclesiastical,  that 
of  the  latter,  though  it  was  connected  in  origin  with  the  church,  was, 
as  we  have  seen,  mainly  secular.  Moreover,  the  parish  meeting  of 
the  South  was  the  meeting  of  a  single  sect,  and  that  not  always  the 
dominant  one.  In  New  England,  as  practically  all  affiliated  with  the 
one  church,  the  ecclesiastical  no  less  than  the  secular  business  of  the 
town  meeting  was  participated  in  by  the  whole  body  of  freemen. 

There  seem  to  have  been  but  two  colonies  outside  of  New  Eng- 
land where  an  institution  with  even  the  semblance  of  the  town  meet- 
ing might  be  found.  In  New  York,  after  two  generations  of  highly 
centralized  and  autocratic  Dutch  rule,6  a  statute  was  passed  in  the 
English  provincial  period,  probably  suggested  by  the  neighboring 
New  England  institution,  authorizing  freeholders  of  the  towns  to  hold 
meetings  for  making  "prudential  orders  and  rules"  relating  to  "im- 
provements of  tillage  and  pasturage."  7  For  some  years  the  towns 
had  existed  for  election  purposes,  and  certain  local  officers  common 
to  the  New  England  system  had  been  chosen  by  the  freeholders.8 


1  "The  entire  local  machinery  consisted  of  five  or  seven  commissioners  holding 
office  during  good  behaviour  and  as  a  close  corporation  appointing  new  members  to 
fill  vacancies  in  the  board." — Wilhelm,  "Local  Institutions  of  Maryland,"  Johns 
Hopkins  University  Studies,  III,  408. 

2  Ingle,  "  Local  Institutions  of  Virginia,"  Johns  Hopkins  University  Studies,  III, 
216,  217. 

3  Howard,  "Local  Constitutional  History,"  118,  127  et  seq. 

4  Id.  126. 

5  Id.  118;   Ingle,  "Local   Institutions  of  Virginia,"  Johns  Hopkins  University, 
Studies,  III,  1 68. 

6  No  provision  was  made  in  the  charters  granted  to  the  Dutch  towns  for  the  direct 
action  of  the  people  in  town  affairs.     There  is  no  recognition  of  the  town  meeting 
as  a  local  political  organization,  but  all  ordinances  even  of  a  local  nature  must  receive 
the  approval  of  the  director  and  council  after  they  have  been  passed  by  the  local  court. 
—  Elting,  "Dutch  Village  Communities  on  the  Hudson  River,"  Johns  Hopkins  Univer- 
sity Studies,  IV,  5. 

7  Act  of  1691 ;  Van  Schaak,  "Laws  of  New  York,"  I,  2,  3. 

8  Howard,  "Local  Constitutional  History,"  no. 


104  THE  PEOPLE'S   LAW 

Likewise  in  Pennsylvania  there  were  early  instances  of  town 
meetings,  though  few  in  number  and  held  at  long  intervals.1  And  it 
was  hardly  a  coincidence  that,  as  we  shall  find  when  we  reach  the 
Revolutionary  era,  the  two  states  last  named  were  among  the  few  out- 
side of  New  England  where  there  was  even  a  demand  by  any  con- 
siderable number  for  the  submission  of  their  first  constitutions  to  the 
people. 

11  In  our  national  history,"  says  Professor  Howard,2  "the  town 
meeting  fills  a  glorious  page."  It  has  indeed  been  a  favorite  subject 
of  eulogy  by  the  institutional  historians  from  De  Tocqueville's  day 
until  our  own.  It  has  been  declared  the  cradle  of  colonial  union  and 
the  nursery  of  nationality 3  as  well  as  "the  germ  which  contains  the 
whole  of  social  life,  and  from  which  grow  the  other  forms  of  political 
development." 4  But  not  the  least  of  its  important  social  functions 
was  that  of  a  school  of  popular  legislation,  preserving  the  traditions 
of  primitive  New  England  and  even  of  the  Teutonic  folkmoots,  and 
preparing  the  people  to  resume  their  ancient  practice  of  passing 
upon  their  fundamental  laws  when  some  great  occasion  should  ren- 
der it  timely.  That  occasion  came  amid  the  throes  of  the  American 
revolution. 

1  Smith,  "History  of  Delaware  County,"  188;  Holcomb,  "Pennsylvania  Boroughs," 
4  ;  Johns  Hopkins  University  Studies,  IV,  164-166. 

2  "Local  Constitutional  History,"  74. 

3  Id. 

4  Scott,  "The  Development  of  Constitutional  Liberty"  (New  York,  1890),  175. 


CHAPTER  VIII 
POPULAR  RATIFICATION  IN  COLONIAL  AMERICA  (Continued) 

THE  MIDDLE  AND  SOUTHERN  COLONIES 

A.     The  Scotch-Irish 

WE  have  seen  how  the  Scotch  colonized  Ulster  in  the  seventeenth 
century.1  By  the  following  century  the  English  government  had  in- 
augurated a  policy  which  caused  a  second  emigration.  A  "Test 
Act"2  was  passed  which  disqualified  Presbyterians  from  holding 
office,  an  "act  against  schism,"  3  which  rendered  Presbyterian  school- 
masters liable  to  imprisonment;  while  various  other  persecutions 
were  imposed  with  the  design  of  supplanting  Presbyterianism  with 
the  Church  of  England.4  The  Scotch-Irish  were  thus  in  much  the 
same  position  as  the  Puritan  Separatists  had  been  a  century  before. 
We  shall  find  that  their  course  of  action  was  parallel.  "They  left 
the  land  which  had  been  saved  to  England  by  the  swords  of  their 
fathers,"  observes  Hanna,5  "and  crossed  the  sea  to  escape  from  the 
galling  tyranny  of  the  bishops  whom  England  had  made  rulers  of 
that  land."  We  shall  find  also  a  striking  similarity  between  the 

1  Ante,  62,  63. 

2  This  was  a  clause  of  the  "Repression  of  Popery  Act"  passed  by  the  Irish  Parlia- 
ment and  sent  to  England  for  final  revision.     "  The  taking  the  sacrament,  according 
to  the  rites  of  the  Established  Church,  was  made  a  condition  of  holding  any  office, 
civil  or  military,  under  the  Crown,  above  the  rank  of  a  constable.     The  exclusive  privi- 
leges so  long  desired  by  the  Irish  Bishops  were  thrown  into  their  hands  as  a  make- 
weight in  a  bill  of  a  totally  opposite  tendency.     The  Presbyterians,  the  Independents, 
the  Huguenot  immigrants,  the  Quakers,  not  protected  in  their  public  worship,  like 
the  English  Dissenter,  by  a  Toleration  Act,  were  swept  under  the  same  political  dis- 
abilities and  were  at  once  cut  off  from  the  army,  the  militia,  the  civil  service,  the  com- 
mission of  the  peace,   and  from  seats  in   the   municipal   corporations."  —  Froude, 
"The  English  in  Ireland"  (New  York,  1875),  I,  3*3- 

3  13  English  Statutes  at  Large,  70  (1714). 

4  Hanna,  "The  Scotch-Irish"  (New  York,  1902),  I,  Chap.  XXXIX. 
»  Id.  621,  622. 

105 


106  THE   PEOPLE'S    LAW 

results  which  followed  the  Puritan  and  the  Scotch-Irish  migra- 
tions. 

Besides  religious  persecutions  there  were  laws  which  crippled  the 
industries  1  built  up  by  these  colonists  in  Ireland,  and  oppressive 
measures  on  the  part  of  their  landlords.2  Hence  the  eighteenth  cen- 
tury saw  large  numbers  of  these  sturdy  folk  transferred  to  the  new 
world.3  They  came  in  two  main  streams,  one  leading  to  Phila- 
delphia, whence  they  scattered  through  the  western  portion  of  Penn- 
sylvania and  Virginia,  and  the  other  to  Charleston,  whence  they 
proceeded  to  settle  in  the  mountainous  districts  of  the  Carolinas.4 

There  were,  indeed,  large  numbers  of  Scotch-Irish  immigrants  in 
other  colonies,  but  their  most  extensive  settlements  were  in  the  regions 
named,  and  there  they  formed  a  distinct  and  predominating  type. 

"The  two  facts  of  most  importance  to  remember  in  dealing  with  our  pioneer 
history,"  says  Roosevelt,5  "are,  first,  that  the  western  portions  of  Virginia  and 
the  Carolinas  were  peopled  by  an  entirely  different  stock  from  that  which  had 
long  existed  in  the  tide-water  regions  of  those  colonies;  and,  secondly,  that,  except 
for  those  in  the  Carolinas  who  came  from  Charleston,  the  emigrants  of  this  stock 
were  mostly  from  the  north,  from  their  great  breeding-ground  and  nursery  in 
western  Pennsylvania." 

Other  nationalities  were,  of  course,  represented  among  these 
mountaineers  of  the  southwest.  But,  as  Professor  Turner  says,6 

*  Hanna,  "  The  Scotch-Irish  "  (New  York,  1902),  I,  Chap.  XXXIX,  614,  622. 

2  Arthur  Young,  however,  says :    "  The  spirit  of  emigrating  in  Ireland  appeared 
to  be  confined  to  two  circumstances:  the  Presbyterian  religion  and  the  linen  manu- 
facture. ...     As  to  emigration  in  the  North,  it  was  an  error  in  England  to  suppose  it 
a  novelty  which  arose  with  the  increase  of  rents."  —  "Tour  in  Ireland"  (1780). 

3  "And  now  recommenced  the  Protestant  emigration,  which  robbed  Ireland  of 
the  bravest  defenders  of  English  interests,  and  peopled  the  American  seaboard  with 
fresh  flights  of  Puritans.     Twenty  thousand  left  Ulster  on  the  destruction  of  the  woollen 
trade.     Many  more  were  driven  away  by  the  first  passing  of  the  Test  Act.     The  stream 
had  slackened,  in  the  hope  that  the  law  would  be  altered.     When  the  prospect  was 
finally  closed,  men  of  spirit  and  energy  refused  to  remain  in  a  country  where  they  were 
held  unfit  to  receive  the  rights  of  citizens ;  and  thenceforward,  until  the  spell  of  tyranny 
was  broken  in  1782,  annual  ship-loads  of  families  poured  themselves  out  from  Belfast 
and  Londonderry."  —  Froude,  "The  English  in  Ireland,"  I,  392. 

4  Roosevelt,  "Winning  of  the  West"  (New  York,  1889),  I,  104-105. 

Mr.  Hanna  gives  an  interesting  chart  showing  the  location  of  these  settlements. 
"The  Scotch-Irish,"  I,  prefix. 

6  "Winning  of  the  West,"  I,  105. 

8  "Western  State-making  in  the  Revolutionary  Era,"  American  Historical  Review, 

I,  72,  73- 

"  Under  a  milder  sky  and  a  less  drastic  government,  the  expatriated  Scots  lost 
nothing  of  their  individuality.  Masterful  and  independent  from  the  beginning, 
masterful  and  independent  they  remained,  inflexible  of  purpose,  impatient  of  injustice, 


POPULAR   RATIFICATION   IN   COLONIAL   AMERICA        107 

"  The  Scotch-Irish  element  was  ascendant,  and  this  contentious,  self- 
reliant,  hardy,  backwoods  stock,  with  its  rude  and  vigorous  forest 
life,  gave  the  tone  to  western  thought  in  the  Revolutionary  era." 
Hence  it  was  also  that  Presbyterian  Calvinism  l  became  the  prevail- 
ing creed  of  this  southwestern  region.  Even  settlers  of  alien  race, 
but  also  Calvinists,  like  the  Huguenots,2  found  it  easy  to  identify 
themselves  with  Presbyterianism.  Wherever  these  Scotch-Irish  im- 
migrants went,  they  bore  memories  of  the  Covenant  and  the  oppres- 
sions of  the  English  crown.  Let  us  follow  their  history  as  they  carry 
with  them  and  develop  these  ancestral  ideas. 

B.    Pennsylvania 

The  founder  of  the  Keystone  commonwealth  was  not  a  Puritan, 
but  he  imbibed  many  of  the  ideas  of  that  sect,3  and  paved  the  way 
for  their  adoption  in  his  colony.  We  have  seen  4  how  elaborately  he 
worked  out  the  Calvinistic  doctrine  of  "  common  consent,"  giving  it 
an  historical  basis  as  applied  to  civil  affairs.  Of  the  constitution 
which,  under  the  name  of  "  Concessions  and  Agreements,"  he  framed 
in  1676  for  the  colony  of  West  Jersey,  Perm  said :  — 

and  staunch  to  their  ideals.  Something  perhaps  they  owed  to  contact  with  the  Celt. 
Wherever  the  Ulster  folk  have  made  their  home,  the  breath  of  the  wholesome  north 
has  followed  them,  preserving  untainted  their  hereditary  virtues."  —  Henderson, 
"Stonewall  Jackson  and  the  American  Civil  War,"  3. 

1  "  Of  all  the  then  prominent  faiths  Calvinism  was  nearest  to  their  [the  settlers] 
feelings  and  ways  of  thought.     Of  the  great  recognized  creeds  it  was  the  most  re- 
publican in  its  tendencies,  and  so  the  best  suited  to  the  backwoodsmen."  —  Roosevelt, 
"Winning  of  the  West,"  II,  233. 

2  A  type  of  these  was  John  Sevier,  one  of  the  great  figures  in  the  history  of  the  region 
whose  constitutional  development  we  are  about  to  consider. 

3  His  early  youth  was  passed  in  Essex,  a  region  "  intensely  Puritan,  and  this  seems 
to  have  had  an  important  influence  on  the  future  Quaker  leader.     It  no  doubt  modi- 
fied his  inherited  royalist  opinions,  and  it  is  not  unlikely  that  during  those  twelve  years 
he  unconsciously  received  from  his  surroundings  that  tinge  of  thought  which  led  to 
Quakerism.  .  .  .     The  Puritan  state  of  mind  was  a  natural  foundation  for  Quaker- 
ism." —  Fisher,  "The  True  William  Penn,"  59,  60. 

"The  young  exile  turned  aside  to  the  college  at  Saumur,  where,  under  the  guidance 
of  the  gifted  and  benevolent  Amyrault,  his  mind  was  trained  in  the  severities  of 
Calvinism,  as  tempered  by  the  spirit  of  universal  love."  —  Bancroft,  "History  of  the 
United  States,"  II,  369. 

At  Oxford  he  sympathized  actively  with  those  who  resisted  the  attempts  to  over- 
throw Puritanism  in  the  University  at  the  restoration.  See  "  Encyclopaedia  Britannica," 
XVIII,  492;  Clarkson,  "Memoirs  of  the  Private  and  Public  Life  of  William  Penn," 
I,  ii. 

4  Ante,  2,  note. 


108  THE   PEOPLE'S   LAW 

"There  we  lay  a  foundation  for  after  ages  to  understand  their  liberty  as 
men  and  Christians,  that  they  may  not  be  brought  in  bondage  but  by  their  own 
consent ;  for  we  put  the  power  in  the  people. "  1 

When  he  came  to  draft  a  constitution  for  the  Pennsylvania  colony, 
Penn  consulted  with  the  Puritan  and  Republican  Algernon  Sidney, 
and,  like  John  Adams  a  century  later,  he  drew  many  of  his  ideas  from 
Harrington's  Oceana.  The  instrument  thus  prepared  in  London 
shortly  before  Perm's  departure  for  the  new  colony  was  one  of  the 
most  advanced  of  its  class,  and  in  no  respect  more  so  than  in  its  evi- 
dent purpose  to  "put  the  power  in  the  people."  It  provided2  that 
for  the  first  year  the  general  assembly  should  consist  of  all  the  free- 
men of  the  province.  Even  after  the  representative  assembly  had 
been  established  no  law  changing  the  fundamental  instrument  could 
be  passed  without  the  consent  of  the  governor  and  six-sevenths  of  the 
freemen.  The  clear  recognition  thus  afforded  to  the  principle  of 
popular  ratification  was  supplemented,  soon  after  Penn's  arrival,  by 
the  meeting  of  the  assembly  which  adopted  the  "  Great  Law  of  Penn- 
sylvania." 

This  Quaker  colony,  with  its  enlightened  policy  of  toleration 
toward  all  sects,  offered  peculiar  attractions  to  the  refugees  from 
North  Ireland.3  The  first  presbytery  in  the  New  World  was  organized 
mainly  by  Scotch-Irish  missionaries  as  early  as  1706  at  Philadelphia,4 
and  from  that  port  these  hardy  champions  of  Presbyterianism  pene- 
trated into  the  newer  counties,5  dispersing  ultimately  throughout  the 
whole  colony.6  Wherever  they  went  in  any  considerable  number, 
they  soon  founded  a  church  and  then  a  presbytery,7  and  events  were 

1  "Encyclopaedia  Britannica,"  XVIII,  504. 

2  Its  text  is  found  in  MacDonald's  "Select  Charters,"  192. 

3  "The  larger  part  of  the  Scotch-Irish  migration  to  America  appears  to  have  come 
to  Pennsylvania,  attracted  probably  by  the  fame  of  this  colony  for  religious  liberty  and 
fertile  soil."  — Fisher,  "The  Making  of  Pennsylvania"  (Philadelphia,  1896),  163. 

"  The  great  majority  of  the  Ulster  immigrants  to  America  first  landed  on  the  Dela- 
ware (river)  shore."  —  Hanna,  "The  Scotch-Irish,"  II,  60. 

4  Briggs,  "American  Presbyterianism"  (New  York,  1885),  140. 

6  They  were,  e.g.  "  the  first  settlers  within  the  limits  of  the  present  Northampton 
County"  (north  of  Philadelphia).  —  Egle,  "History  of  Pennsylvania"  (ad  Ed.,  Phila- 
delphia, 1880),  968. 

6  Fisher,  "The  Making  of  Pennsylvania,  163. 

7  See  the  formidable  list  of  churches  and  presbyteries  in  Hanna,  II,  102  et  seq. 
"Wherever  the  smoke  of  a  score  or  two  of  scattered  cabins  could  be  seen  rising 

above  the  primeval  forest,  in  the  midst  thereof  were  to  be  found  a  schoolhouse  and  a 
church."  —  Cooper,  "The  Scotch-Irish  in  the  Cumberland  Valley,"  Proceedings 
Eighth  Congress,  Scotch-Irish  Society  of  America,  1896  (Nashville,  1897),  295. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA         109 

not  slow  in  demonstrating  how  strong  was  the  hold  of  the  covenant 
idea. 

In  1743  came  the  centennial  anniversary  of  the  signing  of  that 
instrument  which,  under  such  dramatic  circumstances,  had  bound 
their  ancestors  together.  On  November  n  of  that  year,  an  assembly 
of  Scotch-Irish  settlers  in  Lancaster  County,  under  the  leadership  of 
Rev.  Alexander  Craighead,  actually  renewed  the  covenant,  adopted 
a  series  of  articles  which  they  styled  a  "Declaration,"  *  and,  "with 
uplifted  swords,"  abjured  their  allegiance  to  the  British  king,  — 
Hanoverian  ruler  as  well  as  Stuart  pretender,  —  declaring  that  "we 
likewise  join  our  testimony  against  all  that  shall  succeed  them  under 
these  limitations  to  the  crown."  The  grievances  recited  are  mainly 
of  a  religious  character,  —  "the  overturning  and  razing  out  of  that 
glorious  work  of  the  reformation,"  —  but  it  is  significant  that  their 
protest  takes  the  form  of  a  covenant  (as  well  as  a  renewal  of  the 
Solemn  League  and  Covenant),  and  in  tone  and  language  it  is  strangely 
similar  to  the  more  famous  "Declaration"  put  forth  at  Philadelphia 
a  third  of  a  century  later. 

If  the  complete  records  of  this  formative  period  of  Scotch- 
Irish  colonization  in  Pennsylvania  could  have  been  preserved,  they 
would  probably  reveal  many  instances  of  the  application  of  the 
covenant  idea  to  new  conditions.  But  unfortunately  the  value 
of  such  materials  has  too  rarely  been  recognized  by  contempo- 
raries. 

Compacts  and  Associations 

When  we  reach  the  Revolutionary  period,  we  find  the  idea  reap- 
pearing in  the  form  of  military  compacts  and  associations,  recalling 
in  a  remarkable  degree  those  of  the  East  Anglian  Puritans  in  the 
preceding  century.2 

"No  sooner  was  the  collision  between  the  king's  troops  and  the  Massachu- 
setts minute-men  known,"  says  Ford,3  "than  voluntary  military  'associations' 
were  formed  throughout  Pennsylvania." 

1  Part  of  its  text  is  printed  in  Hanna,  II,  41. 

2  Ante,  Chap.  VI. 

3  "Pennsylvania's  First  Constitution,"  Political  Science  Quarterly,  X,  434.     Some 
of  the  Tories  joined  on  the  ground  of  expediency.     Id.     "This  day  a  number  of  the 
associators  of  the  militia  met  in  each  of  the  wards  of  the  city,  to  form  themselves  into 
suitable  companies,  and  to  chose  [sic]  their  respective  officers." — Diary  of  Christopher 
Marshall,  May  i,  1775,  P-  22J  Ford,  434. 


1 10  THE  PEOPLE'S   LAW 

Indeed,  so  marked  a  feature  of  the  revolutionary  movement  did  this 
become  that  its  promoters  were  commonly  known  as  "  Associators."  l 
We  shall  see  later  that  the  Pennsylvania  colonists  most  active  in  the 
revolutionary  cause,  were,  significantly  enough,  the  Scotch-Irish. 

One  of  the  compacts  framed  and  subscribed  by  the  settlers  of 
this  race  in  Fermanagh  Township  in  Juniata  (then  Cumberland) 
County,  has  been  preserved.  These  settlers  had  established  them- 
selves in  their  new  township  and  founded  their  church  about  1760, 
and  now,  finding  it  necessary  to  organize  for  protection  against  the 
Indians,  who  were  then,  doubtless  by  reason  of  British  activity,  un- 
usually threatening,  adopted  the  following  compact : 2  — 

"Terms  proposed  to  the  freemen  of  this  company  for  granting  some  assistance 
to  our  frontier,  as  follows —  viz:  that  four  men  be  raised  immediately  and  paid 
by  this  company  in  grain  or  other  value  thereof  at  three  pounds  old  way  per  month 
during  the  time  they  shall  be  in  actual  service  and  also  provisions.  The  time 
they  shall  engage  to  serve  is  one  month,  and  the  method  for  raising  the  men  afore- 
said shall  be  by  levying  a  proportionate  tax  on  all  and  singular,  the  taxable  property 
of  each  person  residing  within  the  bounds  of  Capt.  Minteer's  company;  and  if 
any  person  shall  so  far  forget  his  duty  as  to  refuse  complying  with  his  brethren 
in  the  aforesaid  necessary  proposals,  he  shall  be  deemed  a  enemy  of  his  country, 
and  be  debarred  from  the  privileges  of  a  subject  of  this  state,  by  being  excluded 
from  the  benefit  of  all  tradesmen  working  for  him  such  as  millers,  smiths  and 
such  like. 

"We  the  subscribers  do  approve  of  the  above  proposals  and  bind  ourselves 
by  these  presents  to  the  performance  of  and  compliance  with  the  same. 

"In  witness  whereof  we  have  hereunto  set  our  hands  on  this  2ist  day  of  May, 
1780." 

Signed  to  the  foregoing  are  about  sixty  names,  apparently  nearly 
all  Scotch-Irish,  and  probably  including  the  whole  body  of  settlers. 
Even  so  commonplace  a  detail  as  the  enlistment  seems  to  have  taken 
the  covenant  form,  for  subjoined  to  the  above  is  the  following  with 
some  of  the  same  signatures :  — 

"An  agreement  made  by  the  under  named  persons — Viz:  that  they  will 
serve  as  militia  volunteers  along  the  frontiers  for  the  space  of  one  month,  com- 
mencing from  Monday  the  2pth  instant,  to  meet  at  David  Nelson's  on  said  day 
and  to  march  from  thence. 

"Given  under  our  hands  this  24th  day  of  May,  1780."  3 

1  Ford,  Political  Science  Quarterly,  X,  434,  435,  452. 

2  See  McMeen,  "The  Scotch-Irish  of  the  Juniata  Valley,"  Proceedings  Eighth 
Congress,  Scotch-Irish  Society  of  America,  1896  (Nashville,  1897),  122.     This  author 
mentions  other  such  agreements. 

3  Id. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA         ill 

The  Scotch-Irish  were  not  the  dominant  race,  either  politically  or 
numerically,  in  colonial  Pennsylvania.  In  point  of  numbers  they 
were  exceeded  by  the  Germans,  and  in  the  affairs  of  state  the  English 
Quaker  element  was  in  control  during  almost  the  entire  colonial 
period.  But  there  is  reason  for  believing  that  the  Scotch-Irish 
colonists  exerted  an  influence,  far  out  of  proportion  to  their  numbers 
or  station,  upon  the  political  and  constitutional  development  of  the 
keystone  commonwealth.  The  number  of  public  men,  prominent  in 
its  history,  of  Scotch-Irish  descent,  has  been  a  subject  of  frequent 
remark.  Not  so  much  has  been  said  as  to  the  institutional  contribu- 
tions of  the  race.  Yet,  surely  it  is  not  without  significance  that 
Pennsylvania  was  the  only  colony,  outside  of  and  not  contiguous  to, 
New  England,  where  the  town  meeting  —  that  lay  offshoot  of  the 
Calvinistic  congregation  l  —  was  found.  Nor  can  it  be  regarded  as 
accidental  that  this  state  alone,  as  we  shall  see,  of  all  those  outside 
of  New  England,  actually  provided  for  submitting  to  a  vote  of  the 
people  a  state  constitution  of  the  eighteenth  century. 

C.     The  Carolines 

The  region  known  as  the  province  of  Carolina  received  a  lesson 
in  the  covenant  idea  very  early  in  its  history.  After  having  had 
several  royal  charters,  the  Colony,  in  1669,  came  under  the  rule  of 
the  celebrated  "Fundamental  Constitutions"  which  had  been  framed 
by  John  Locke.  The  government  therein  provided  was  proprietary 
and  even  feudal  in  character.  But  Locke  was  the  son  of  a  Puritan 
and  had  been  trained  in  the  Calvinistic  school  of  political  thought,2 
and  the  effects  of  it  are  clearly  traceable  in  the  following  clauses :  — 

"A  true  copy  of  these  fundamental  constitutions  shall  be  kept  in  a  great 
book  by  the  register  of  every  precinct,  to  be  subscribed  before  the  said  register. 
Nor  shall  any  person,  of  what  degree  or  condition  soever,  above  seventeen  years 
old,  have  any  estate  or  possession  in  Carolina,  or  protection  or  benefit  of  the  law 
there,  who  hath  not,  before  a  precinct  register,  subscribed  these  fundamental 
constitutions  in  this  form:" 

.  .  .  "Whatsoever  alien  shall  in  this  form,  before  any  precinct  register, 
subscribe  these  fundamental  constitutions,  shall  be  thereby  naturalized."  3 

1  Stille,  "  Life  of  Dickinson,"  343. 

2  "Encyclopaedia  Britannica,"  XIV,  758. 

8  Poore,  "Charters  and  Constitutions,"  II,  1408. 


112  THE  PEOPLE'S   LAW 

The  first  clause  is  followed  by  a  prescribed  form  of  oath,  and  we 
have  here  a  plain  reproduction  of  the  "subscription"  feature  of 
those  famous  British  Covenants  which  had  appeared  somewhat 
earlier  in  the  same  century.  The  idea  thus  early  inaugurated  was 
soon  further  developed  by  men  of  the  race  whose  tendencies  have 
been  briefly  noticed  above. 

Scotch  immigration  to  South  Carolina  dates  from  about  the  begin- 
ning of  the  eighteenth  century,1  and  as  early  as  1719  the  race  char- 
acteristics began  to  manifest  themselves.  That  year  witnessed  a 
revolution  against  the  proprietary  government,  and  the  leading  spirit 
in  the  movement  was  one  Alexander  Skene,  whose  name  sufficiently 
indicates  his  Scotch  nationality,2  and  who  had  been  secretary  for  the 
island  of  Barbadoes.3  His  method  of  organization  was  plainly 
modelled  upon  that  of  the  British  revolutionists  of  the  preceding 
century. 

"An  association  was  secretly  prepared.  .  .  .  Among  many  able  and  reso- 
lute patriots  no  particular  leadership  was  assigned —  wisdom,  not  war  was  needed 
—  the  commonwealth,  the  good  of  every  man  around  them,  was  the  object  of  their 
solicitude.  Their  declaration  and  resolutions  were  framed  and  mutual  pledges 
given.  The  muster  of  the  regiments  took  place  according  to  order;  and  the 
people  'almost  to  a  man'  signed  the  resolutions  submitted  to  them;  and  'so  the 
whole  province  was  at  once  brought  into  a  confederacy  against  the  lords  proprietors 
unknown  to  the  governor.'  .  .  .  The  people  having  joined  the  association  had 
thereby  'promised  and  agreed  to  stand  by  and  support  whatsoever  should  be 
done  by  their  representatives  then  newly  chosen,  in  disengaging  the  country  from 
the  yoke  and  burden  they  labored  under  from  the  proprietors  and  putting  the 
province  under  the  government  of  his  majesty.'  "  4 

1  Hanna,  "The  Scotch-Irish,"  II,  25  et  seq. 

2  It  was  a  common  Scotch  name  found  in  Aberdeenshire  before  noo.     The  "Rag- 
man Roll"  or  list  of  the  Scottish  barons  who  swore  fealty  to  Edward  I  about  the  close 
of  the  thirteenth  century  contains  the  names  of  three  Skenes.     A  Scotchman  of  that 
name  was  governor  of  Pennsylvania  in  1686.     "The  name  is  territorial  and  not  derived 
from  the  weapon  called  a  'skene'  or  dagger,  as  has  been  heretofore  unquestioningly 
believed,  but  from  the  lands  of  the  name." — Hanna,  "The  Scotch-Irish,"  I,  48; 
II,  234,  403,  435,  citing  Anderson's  "  Genealogy  and  Surnames." 

3  Rivers,  "History  of  South  Carolina  to  the  Close  of  the  Proprietary  Government" 
(Charleston,  1856),  296.     The  author  adds  that  Skene  "was  skilful  in  the  manage- 
ment of  public  affairs,  was  filled  with  resentment  against  the  proprietors  for  turning 
him  out  of  the  council,  because  he  had  joined  in  the  complaint  against  Mr.  Trott.     His 
experience  and  resolute  character  fitted  him  both  for  planning  and  consummating  a 
revolution ;  and  he  exerted  especial  influence  in  the  private  meetings  of  members  of 
the  Assembly,  held  for  considering  the  best  method  of  delivering  the  province  from 
the  authority  of  the  proprietors." 

4  Id.  296,  297,  299. 


POPULAR   RATIFICATION   IN   COLONIAL   AMERICA         113 

In  all  this  we  have  complete  instances  of  the  "association"  and 
the  "  covenant,"  and  by  such  means  the  proprietary  government  was 
overthrown.1 

The  Scotch-Irish  colonization  of  that  part  of  South  Carolina 
known  as  "the  back  country"  began  about  the  middle  of  the  eigh- 
teenth century  2  with  immigrants  from  Virginia  and  Pennsylvania.3 
The  settlements  were  harassed  considerably  during  the  French  and 
Indian  War,  and  when  peace  came  it  left  them  in  a  disturbed  condi- 
tion easily  a  prey  to  enemies  within  their  borders.  They  suffered 
particularly  from  horse-thieves,  the  suppression  of  whom  was  greatly 
hindered  by  the  lack  of  an  effective  judicial  system  —  the  courts 
being  held  at  Charleston,  two  hundred  miles  away.4  In  this  situa- 
tion, which  was  fast  becoming  intolerable,  the  settlers  resorted  to  the 
covenant  idea  so  common  in  the  history  of  their  race,  and  employed 
it  for  the  most  practical  of  all  purposes  —  self-preservation. 

The  Nestor  of  South  Carolina  historians 5  thus  describes  the 
action  taken:  — 

"  In  the  year  1764,  Joseph  Kirkland,  Barnaby  Pope,  and  others  of  the  best 
and  most  orderly  inhabitants,  held  a  consultation  on  what  was  best  to  be  done. 
They  drew  up  an  instrument  of  writing  which  they  and  their  associates  generally 
subscribed.  In  it  they  bound  themselves  to  make  a  common  cause  in  immediately 
pursuing  and  arresting  all  horse-thieves  and  other  criminals.  Such,  when  caught, 
were  tried  in  a  summary  way  by  the  neighbors  and,  if  found  guilty,  were  sentenced 
to  receive  a  number  of  stripes  on  their  bare  backs,  more  or  less  in  proportion  to 
their  misdeeds.  They  were  then  advised  to  leave  the  neighborhood  and  informed 
that  if  they  returned  their  punishment  would  be  doubled.  This  mode  of  proceed- 
ing was  called  regulation,  and  its  authors  and  friends  regulators." 

We  have  seen  how  the  Scotch-Irish  of  Pennsylvania  had  "re- 
newed" the  Solemn  League  and  Covenant  more  than  twenty  years 
before.6  But  here  was  an  original  covenant  applied  to  new  condi- 

1  Rivers,  309,  310. 

2  "Anthony  Park,  one  of  the  first  settlers  of  the  back  country  .  .  .  travelled  in 
1758  a  few  hundred  miles  among  the  Indians  to  the  west  of  the  AUeghany  Mountains. 
He  found  several  white  men,  chiefly  Scotch  or  Irish,  who  said  that  they  had  lived  as 
traders  among  the  Indians  twenty  years ;  a  few  from  forty  to  fifty  and  one  sixty  years."  — 
Ramsay,  "History  of  South  Carolina"  (Charleston,  1809),  I,  208,  note. 

3  Id.  Chap.  VI. 

4  Id.    2IO-2I2. 

8  Id.  I,   212,   213. 

8  Ante,  log. 

1 


114  THE   PEOPLE'S   LAW 

tions.  It  is  most  unfortunate  that  the  text  of  this  interesting  docu- 
ment has  not  been  preserved.  But  its  character  and  purpose  —  the 
fact  that  it  was  a  compact  and  ''generally  subscribed"  —  mark  it  as 
belonging  to  that  class  of  local  constitutions  whose  history  we  are 
now  considering.  It  was,  however,  more  than  this.1  The  forming 
of  "Regulators'  Associations"  was  met  by  a  counter-movement  on 
the  part  of  their  adversaries,  and  the  latter  seem  to  have  secured  the 
favor  of  the  provincial  authorities.  A  High  Commissioner,  Scouil, 
was  appointed  by  the  governor,  and  his  espousal  of  the  cause  of  those 
opposed  to  the  Regulators  was  such  that  armed  strife  between  the 
two  parties  was  narrowly  averted.  The  establishment  of  circuit 
courts  tended  to  remove  some  of  the  grievances,  but  the  feud  con- 
tinued, nevertheless,  until  the  outbreak  of  the  revolution.  The  Regu- 
lators and  "Scouilites"  became  the  patriots  and  Tories  of  the  suc- 
ceeding decade,  and  the  compact  of  1764  was  thus  a  preliminary 
step  in  the  struggle  for  independence.2 

In  North  Carolina  the  Regulators'  movement  was  a  protest  against 
abuses  in  the  provincial  government  —  excessive  taxation  and  the 
extortion  of  colonial  officers,  —  which,  not  long  after  the  middle  of 
the  eighteenth  century,  had  caused  popular  discontent,  chronic  and 
deep-seated.  The  leader  of  the  popular  party  during  this  stormy 
period  was  one  Herman  Husbands,  whose  chronicle,  styled  "Hus- 
bands' Relation," 3  is  an  important  source  for  the  history  of  the  time. 
It  is  a  homely  narrative,  often  ungrammatical  and  sometimes  coarse, 
but  it  states  the  grievances  of  an  oppressed  yeomanry  with  a  forceful 
directness  that  recalls  the  plaints  of  Piers  Plowman  and  Wat 
Tyler.4 

1  See  Ramsey,  I,  213,  214. 

2  But  see  post,  117,  note  6. 

3  It  was  printed  1770,  and  is  reprinted  in  Wheeler,  "History  of  North  Carolina" 
(Philadelphia,  1851),  II,  301  et  seq.,  who  says  that  he  found  "the  only  perfect  copy 
extant "  in  the  library  of  Philadelphia. 

4  Following  is  an  illustration:   "A  poor  man  is  supposed  to  have  given  his  judg- 
ment bond  for  five  pounds;  and  this  bond  is  by  his  creditor  thrown  into  court.     The 
Clerk  of  the  County  has  to  enter  it  on  the  docket,  and  issue  execution,  the  work  of  one 
long  minute,  for  which  the  poor  man  has  to  pay  him  the  trifling  sum  of  forty -one  shillings 
and  five  pence.     The  Clerk,  in  consideration  he  is  a  poor  man,  takes  it  out  in  work  at 
eighteen  pence  a  day.     The  poor  man  works  some  more  than  twenty-seven  days  to 
pay  for  this  one  minute's  writing. 

"Well,  the  poor  man  reflects  thus:  At  this  rate  when  shall  I  get  to  labor  for  my 
family?  I  have  a  wife  and  a  parcel  of  small  children  suffering  at  home,  and  here  I 
have  lost  a  whole  month,  and  I  don't  know  for  what ;  for  my  merchant  is  as  far  from 


POPULAR   RATIFICATION   IN   COLONIAL   AMERICA         115 

As  early  as  1766,  Husbands  tells  us,  after  the  people  of  several 
counties  had  refused  to  pay  taxes,  a  paper  was  circulated  in  Orange 
County  in  which,  after  reciting  the  evils  complained  of, 

"the  following  proposal  is  submitted  to  the  public,  to  wit:  Let  each  neighbor- 
hood throughout  the  county  meet  together  and  appoint  one  or  more  men  to  attend 
a  general  meeting  on  the  Monday  before  next  November  Court,  at  a  suitable  place, 
where  there  is  no  liquor  (at  Maddock's  Mill  if  no  objection) ;  at  which  meeting 
let  it  be  judiciously  inquired  into,  whether  the  freemen  of  this  county  labor  under 
any  abuses  of  power  or  not ;  and  let  the  same  be  notified  in  writing  if  any  is  found, 
and  the  matter  freely  conversed  upon  and  proper  measures  used  for  amendment. "  1 

Out  of  the  movement  thus  inaugurated  sprang  the  Regulators  of 
North  Carolina  whom  Husbands  refers  to  as  "this  new  association," 
and  of  which  he  says  that  "  people  had  entered  into  it  by  hundreds, 
and  it  spread  every  way  like  fire."  2 

At  a  meeting  of  these  Orange  County  Regulators  in  March,  1768, 
they  adopted  a  set  of  articles  as  follows : 3  — 

"We  the  subscribers  do  voluntarily  agree  to  form  ourselves  into  an  associa- 
tion to  assemble  ourselves  for  conference  for  regulating  public  grievances  and 
abuses  of  power,  in  the  following  particulars  with  others  of  the  like  nature  that 
may  occur: 

"  i st.  That  we  will  pay  no  more  taxes  until  we  are  satisfied  that  they  are 
agreeable  to  law,  and  applied  to  the  purposes  therein  mentioned,  unless  we  can- 
not help  it  or  are  forced. 

being  paid  yet  as  ever.  However,  I  will  go  home  now  and  try  and  do  what  I  can. 
Stay,  neighbor,  you  have  not  half  done  yet;  there  is  a  d — d  lawyer's  mouth  to  stop  yet 
—  for  you  impowered  him  to  confess  that  you  owed  this  five  pounds,  and  you  have 
thirty  shillings  to  pay  him  for  that  or  go  and  work  nineteen  days  more ;  and  then  you 
must  work  as  long  to  pay  the  sheriff  for  his  trouble ;  and  then  you  may  go  home  and  see 
your  horses  and  cow  sold,  and  all  your  personal  estate,  for  one-tenth  part  of  the  value 
to  pay  off  your  merchant.  And  lastly,  if  the  debt  is  so  great  that  all  your  personal 
estate  will  not  do  to  raise  the  money,  which  is  not  to  be  had,  —  then  goes  your  lands 
the  same  way  to  satisfy  these  cursed  hungry  caterpillars  that  will  eat  out  the  very  bowels 
of  our  commonwealth  if  they  are  not  pulled  down  from  their  nests  in  a  very  short  time. 
And  what  need  I  say  to  urge  a  reformation  ?  If  these  things  were  absolutely  according 
to  law,  it  were  enough  to  make  us  throw  off  all  submission  to  such  tyrannical  laws; 
for  were  such  things  tolerated,  it  would  be  better  to  die  in  defence  of  our  privileges  than 
to  perish  for  want  of  the  means  of  subsistence.  But  as  these  practices  are  contrary  to 
law,  it  is  our  duty  to  put  a  stop  to  them  before  they  quite  ruin  our  country,  or  that  we 
become  willing  slaves  to  these  lawless  wretches,  and  hug  our  chains  of  bondage  and 
remain  contented  under  these  accumulated  calamities."  — Wheeler,  II,  301,  302. 

1  W.  303- 

2  Id.  305- 

3  Id.  306;    "Colonial  Records  of  North  Carolina"  (Raleigh,  1890),  671. 


Il6  THE   PEOPLE'S   LAW 

"  2d.  That  we  will  pay  no  officer  any  more  fees  than  the  law  allows,  unless 
we  are  obliged  to  it,  and  then  to  show  our  dislike  and  bear  an  open  testimony 
against  it. 

"3d.  That  we  will  attend  our  meetings  of  conference  as  often  as  we  con- 
veniently can,  and  is  necessary,  in  order  to  consult  our  representatives  of  the 
amendment  of  such  laws  as  may  be  found  grievous  or  unnecessary ;  and  to  choose 
more  suitable  men  than  we  have  done  heretofore  for  burgesses  and  vestrymen; 
and  to  petition  the  House  of  Assembly,  Governor,  Council,  King  and  Parliament 
&c.  for  redress  in  such  grievances  as  in  the  course  of  the  undertaking  may  occur ; 
and  to  inform  one  another,  learn,  know  and  enjoy  all  the  privileges  and  liberties 
that  are  allowed  and  were  settled  upon  us  by  our  worthy  ancestors,  the  founders 
of  our  present  constitution,  in  order  to  preserve  it  on  its  ancient  foundation,  that 
it  may  stand  firm  and  unshaken. 

"4th.  That  we  will  contribute  to  collections  for  defraying  necessary  ex- 
penses attending  the  work  according  to  our  abilities. 

"5th.  That  in  case  of  difference  in  judgment,  we  will  submit  to  the  judg- 
ment of  the  majority  of  our  body. 

"To  all  which  we  solemnly  swear,  or,  being  a  Quaker,  or  otherwise  scrupu- 
lous in  conscience  of  the  common  oath,  do  solemnly  affirm,  that  we  will  stand 
true  and  faithful  to  this  cause,  till  we  bring  things  to  a  true  regulation,  according 
to  the  true  intent  and  meaning  hereof  in  the  judgment  of  the  majority  of  us." 

How  strikingly  does  this  recall  the  East  Anglian  compacts  of  a 
century  and  a  quarter  previous!  Even  the  name  "association" 
(they  elsewhere  style  themselves  "  associators "  *)  is  that  used  by  the 
sturdy  yeomanry  who  ushered  in  the  English  Commonwealth.  The 
instrument  itself  is,  of  course,  a  covenant.  It  is  "we  the  subscribers" 
who  bind  themselves  and  are  entitled  to  its  benefits,  and  the  doctrine 
of  "common  assent"  is  expressly  retained  by  the  last  clause  which 
requires  all  to  "submit  to  the  judgment  of  the  majority." 

The  same  ideas  are  set  forth  in  the  following  oath  of  the  Regu- 
lators :  — 

"I,  A.  B.,  do  promise  and  swear,  that  if  any  officer  or  any  other  person,  do 
make  distress  on  any  of  the  goods  or  other  estate  of  any  person  sworn  herein, 
being  a  subscriber,  for  the  non-payment  of  the  said  tax,  that  I  will  with  other 
sufficient  assistance,  go  and  take,  if  in  my  power,  from  said  officer,  and  restore  it 
to  the  party  from  whom  taken,  and  in  case  any  one  concerned  herein  should  be 
imprisoned  or  under  arrest,  or  otherwise  confined,  or  his  estate  or  any  part  thereof, 
by  reason  or  means  of  joining  into  this  company  of  Regulators,  for  the  non-pay- 
ment of  taxes,  that  I  will  immediately  do  my  best  endeavors  to  raise  as  many  of 
the  said  subscribers,  as  will  be  of  force  sufficient,  arid  if  in  my  power,  set  the  said 
person  and  his  estate  at  liberty;  and  I  do  further  promise  and  swear,  that  if  in 

1  In  resolutions  adopted  by  them  on  May  21,  1768.  Wheeler,  "History  of  North 
Carolina,"  II,  309. 


POPULAR    RATIFICATION   IN   COLONIAL   AMERICA         117 

this  case,  this  our  scheme  should  be  broke,  or  otherwise  give  out  our  intention, 
any  of  our  company  should  be  put  to  any  expense  or  under  any  confinement  that 
I  will  be  an  equal  share  with  those  in  being  to  pay  and  make  up  the  sufferer. 
"All  these  things  I  do  promise  and  swear  and  subscribe  my  name."1 

An  "  Association"  similar  to  that  of  Orange  County  was  formed 
in  Anson  County.2  It  consisted  "  of  about  five  hundred  men,  resolv- 
ing, should  no  happier  event  interfere  to  our  succor,  to  defend  our 
cause  in  the  disagreeable  manner  of  force  and  to  have  persisted  unto 
blood."  3  The  governor  is  asked  to  remove  the  obnoxious  officials, 
"  and  also  to  recommend  by  the  voice  of  the  country  such  persons  as 
will  judiciously  discharge  their  several  offices."  4 

The  Regulators'  agitation  continued  with  increasing  fierceness 
until  in  1771  they  came  into  armed  conflict  with  the  provincial  forces. 
Meeting  on  the  banks  of  the  Allamance  River,  on  May  16  of  that 
year,  a  fierce  battle  ensued  in  which  the  Regulators  were  finally  de- 
feated, though  their  loss  appears  to  have  been  less  than  that  of  the 
king's  army.  "Thus  and  here,"  says  Wheeler,5  "was  the  first  blood 
spilled  in  these  United  States,  in  resistance  to  exactions  of  English 
rulers  and  oppressions  by  the  English  government." 

But  the  disaffection  did  not  end  with  this  battle  of  the  Allamance. 
The  movement  continued  to  agitate  the  colony  during  subsequent 
years,  and,  while  it  may  not  have  been,  as  formerly  supposed,  the 
prologue  to  the  American  Revolution,  it  certainly  had  its  influence 
upon  that  struggle.6  It  is  surely  significant  that  the  first  formal 
assertion,  during  the  revolutionary  period,7  of  independence  of  Great 
Britain,  was  made  here,  for  it  was  inspired  by  men  of  the  same  race 
who  furnished  the  bone  and  sinew  of  the  Regulators'  movement. 
"The  Scotch-Irish  patriots  of  Mecklenburg  county  in  North  Caro- 
lina," says  Fiske,8  "ventured  upon  a  measure  more  decided  than 

1  Wheeler,  "  History  of  North  Carolina,"  II,  18.  2  Id.  I,  56. 

3  Id.  II,  22.  4  Id.  23.  5  Id.  I,  59. 

8  "  Investigation  leads  to  the  view  that  the  Regulators  could  have  no  direct  connec- 
tion with  the  Revolution.  I  can  see  no  continuity  of  influence.  .  .  .  There  is  a  sense, 
however,  in  which  the  Regulation  influenced  the  Revolution.  The  struggle  was  a  grand 
object  lesson  to  the  whole  country.  It  set  the  people  to  thinking  of  armed  resistance. 
Failure  as  it  was  it  showed  how  weak  the  British  army  would  be  in  a  hostile  country."  — 
Bassett,  "The  North  Carolina  Regulators,"  American  Historical  Association  Reports, 
(1894),  211.  (House  Miscellaneous  Documents,  3d  Session,  53d  Congress  (1894-1895), 
XVII.)  Cf.  142. 

7  We  have  seen  that  there  was  such  a  declaration  thirty  years  before,  ante,  109. 

8  "The  American  Revolution"  (Boston,   1899),  I,  127,  128. 


Il8  THE   PEOPLE'S  LAW 

any  that  had  yet  been  taken  in  any  part  of  the  country."  It  was  in 
this  county  on  May  31,  1775,  that  the  famous  "Resolves"1  were 
adopted  by  which  it  was  declared  that  "all  laws  and  commissions 
confirmed  by  or  derived  from  the  authority  of  the  king  and  parlia- 
ment are  annulled  and  vacated,"  and  new  laws  were  promulgated 
and  a  government  established  for  their  execution.  Strong  evidence 
has  been  produced  in  support  of  the  claim  that  in  this  same  county, 
a  formal  declaration  of  independence,  rivalling  in  tone  the  Phila- 
delphia instrument  of  the  following  year,  had  been  issued  eleven 
days  before  the  adoption  of  these  "  Resolves."  2  The  claim  is  rejected 
by  some,3  nor  is  its  establishment  essential  to  the  glory  of  this  liberty- 
loving  people.  Their  known  and  unchallenged  history  for  the  pre- 
ceding decade  is  one  of  the  important  chapters  in  our  national 
development,  for  they  were  then  not  only  paving  the  way  to  indepen- 
dence—  they  were  likewise  laying  the  foundations  of  the  popular 
written  constitution  of  the  South.  That  the  first  recorded  demand 

1  They  are  printed  in  full  in  Wheeler,  "History  of    North  Carolina,"  II,  255, 
256. 

John  McKnitt  Alexander,  secretary  of  the  convention,  was  descended  from  a  Mary- 
land Scotch-Irish  family.  See  Hanna,  "The  Scotch-Irish,"  II,  60. 

2  See  a  valuable  paper  on  this  subject  by  Dr.  George  W.  Graham,  "  Proceedings 
7th  Scotch-Irish  Congress,"  140,  where  the  evidence  is  marshalled  in  support  of  the 
claim.     He  says:   "Professor  Alexander  Graham  of  Charlotte,  N.C.,  and  myself  have 
made  a  thorough  investigation  of  this  question  during  the  past  four  years,  and  now 
present  to  this  honorable  assembly  the  result  of  our  research.     It  will  be  found  to  con- 
tain much  new  evidence  that  has  never  appeared  in  print,  and,  we  think,  will  remove 
all  existing  doubt  as  to  there  having  been  a  declaration  of  independence  by  the  Scotch- 
Irish  of  Mecklenburg  on  May  20,  1775." 

The  alleged  text  is  printed  by  Wheeler,  I,  69,  70,  who  says  that  they  are  "  from  the 
pen  of  Dr.  Ephraim  Brevard."  Cf.  Ramsey,  "Annals  of  Tennessee"  (Philadelphia, 
1860),  128;  Moore,  "Defence  of  the  Mecklenburg  Declaration  of  Independence." 

3  "The  early  writers  of  United  States  history  passed  over  the  proceedings  of  May 
3ist  in  silence,  and  presently  the  North  Carolina  patriots  tried  to  supply  an  account 
of  them  from  memory.     Their  traditional  account  was  not  published  until  1819,  when 
it  was  found  to  contain  a  spurious  document,  giving  the  substance  of  some  of  the 
foregoing  resolves,  decorated  with  phrases  borrowed  from  the  great  Declaration  of 
Independence  of  1776.     This  document  purported  to  have  been  drawn  up  and  signed 
at  a  county  meeting  on  the  2oth  of  May.     A  fierce  controversy  sprang  up  over  the 
genuineness  of  the  document,  which  was  promptly  called  in  question.    For  a  long  time 
many  people  believed  in  it,  and  were  inclined  to  charge  Jefferson  with  having  plagiarized 
from  it  in  writing  the  Declaration  of  Independence.     But  a  minute  investigation  of  all 
the  newspapers  of  May,  1775,  has  shown  that  no  such  meeting  was  held  on  the  20th, 
and  that  no  such  document  was  made  public.     The  story  of  the  Mecklenburg  Declara- 
tion is  simply  a  legend,  based  upon  the  distorted  recollection  of  the  real  proceedings."  — 
Fiske,  "The  American  Revolution"  (Boston,  1899),  I,  128,  129.     Cf.  Am.  Hist.  Rev. 
XIII,  16. 


POPULAR   RATIFICATION    IN   COLONIAL   AMERICA         119 

anywhere  in  that  region  for  a  popularly  ratified  state  constitution  came 
from  these  counties  of  Mecklenburg  and  Orange  was  no  accidental 
occurrence. 

D.     Tennessee 
i.     The  Watauga  Compact  (1772) 

The  two  main  streams  in  which,  as  we  have  seen,  the  Scotch- 
Irish  immigrants  crossed  the  ocean  converged  in  what  is  now  eastern 
Tennessee.  Portions  of  the  northern  stream,  following  the  great 
watercourses  on  the  western  slope  of  the  Alleghenies,1  met  a  branch 
of  the  other,  which  had  crossed  the  mountains  from  the  Atlantic  sea- 
board 2  and  a  few  years  before  the  American  Revolution  formed 
what  is  known  as  the  "Watauga  Settlement."  At  that  time  the 
locality  was  supposed  to  be  a  part  of  Virginia.  It  proved,  however, 
to  be  within  the  limits  of  North  Carolina.3  But  the  seat  of  govern- 
ment of  that  province  was  remote  and  separated  from  the  new  settle- 
ment by  mountain  ranges.  The  province,  too,  was  then,  as  we  have 
seen,  in  the  throes  of  a  civil  war,  and  the  settlers  of  Watauga,  many 
of  whom  had  been  participants  in  the  Regulators'  movement,4  had 
little  reason  to  expect  assistance  from,  and  probably  little  desire  for 
the  establishment  of  relations  with,  the  provincial  government  which 
had  become  so  obnoxious  to  the  yeomanry  of  North  Carolina.  In 
this  emergency  the  settlers  repeated  the  civic  history  of  their  race. 
Like  the  Puritans  of  early  New  England,  they  organized  a  civil  gov- 
ernment of  their  own,  which,  though  independent  of  existing  authority, 
was  not  cut  off  entirely  from  connection  with  the  past,  but  was  formed 
according  to  the  ideals  and  precedents  with  which  its  founders  were 
familiar. 

One  of  the  leading  spirits  in  the  formation  of  the  Watauga  gov- 
ernment was  James  Robertson.  He  was  a  Scotch-Irish  Presbyterian,5 
though  born  in  Virginia,  whence  he  had  emigrated  to  North  Carolina. 

1  Roosevelt,  "Winning  of  the  West"  (New  York,  1889),  I,  167. 

2  Id.     Cf.  Campbell,  "The  Puritan  in  Holland,  England,  and  America"  (New 
York,  1892),  II,  485. 

3  Roosevelt,  I,  170  et  seq.      Note  the  parallel  to  the  situation  under  which  the 
Mayflower  Compact  was  formed,  ante,  69. 

4  Gilmore,  "The  Rear  Guard  of  the  American  Revolution"  (New  York,  1889),  39. 

5  Gilmore,  "The  Advance  Guard  of  Western  Civilization"  (New  York,  1888),  29; 
Roosevelt,  I,  103,  note  i. 


120  THE   PEOPLE'S   LAW 

His  home  there  was  in  Wake  County,1  nearly  contiguous  to  Orange, 
where  the  Regulators'  movement  began.  He  was  familiar  with  their 
grievances,  their  methods  of  organization  and  action,  and,  by  no 
means  least  of  all,  with  the  plain-spoken  utterances  of  "Husbands' 
Relation."  2  Robertson  and  his  fellow-immigrants  from  North  Caro- 
lina came  to  Watauga  fully  imbued  with  the  ideas  of  the  Regulators,3 
including  their  plans  of  "association"  and  "covenant."  "It  is  not 
unreasonable  to  conclude,"  observes  Professor  Turner,4  "that  the  sug- 
gestion of  the  Watauga  Association  may  have  been  due  to  the  Regu- 
lating Associations."  We  need  not  be  surprised,  therefore,  to  learn 
that  these  Watauga  settlers  in  the  year  1772  adopted  a  civil  com- 
pact which  they  styled  "Articles  of  Agreement."  President  Roose- 
velt says:  — 

"They  formed  a  written  constitution,  the  first  ever  adopted  west  of  the  moun- 
tains, or  by  a  community  composed  of  American -born  freemen."  6 

It  certainly  appears  to  have  been  the  first  instrument  of  its  class 
west  of  the  Alleghenies  and  it  preceded  by  a  considerable  interval 
the  brilliant  array  of  constitutions  which  we  shall  soon  reach  and 
which  appeared  in  the  early  days  of  the  Revolution.6  But  it  clearly 
followed  along  the  lines  of  the  Regulators'  compact 7  of  1768,  and  it 
must  also  be  compared  with  the  compacts  of  colonial  New  England,8 
for  it  was  the  product  of  strikingly  similar  conditions  and  is  plainly 
of  their  class. 

Our   information   concerning  this   most   interesting  episode   in 

1  "It  is  said  that  the  greatest  proportion  of  the  early  settlers  came  from  Wake 
County,  N.C.,  as  did  Robertson ;  but  many  of  them,  like  Robertson,  were  of  Virginia 
birth,  and  the  great  majority  were  of  the  same  stock  as  the  Virginian  and  Pennsylvanian 
mountaineers."  —  Roosevelt,  I,  172,  note. 

2  Putnam,  "History  of  Middle  Tennessee"  (Nashville,  1859),  19. 

8  Robertson  came  to  Watauga  with  Boone's  exploring  party.  "He  had  been  de- 
puted by  a  number  of  his  neighbors  to  find  '  good  springs  and  rich  lands  and  enough 
of  both  to  accommodate  them  all,'  where  they  could  form  a  community  of  friends  free 
from  political  oppression  and  the  insolence  of  the  'red-coated  minions'  of  'the  great 
he-wolf  of  North  Carolina,'  Governor  Tryon."  — Gilmore,  "The  Rear  Guard  of  the 
American  Revolution"  (New  York,  1889),  40. 

4  "  Western  State-Making  in  the  Revolutionary  Era,"  American  Historical  Review, 
I,76. 

8  "Winning  of  the  West,"  I,  183.  Cf.  Ramsey,  "Annals  of  Tennessee"  (Phila- 
delphia, 1860),  107. 

e  It  antedated  by  nearly  four  years  the  New  Hampshire  constitution  which  appears 
to  have  been  the  earliest.  See  post,  139. 

7  Ante,  115,  116.  •  Ante,  Chap.  VII. 


POPULAR   RATIFICATION    IN   COLONIAL   AMERICA         12 1 

southern  constitutional  history  is  unfortunately  meagre.  Even  the 
text  of  the  ''Articles"  has  been  lost.  An  historian  of  Tennessee, 
writing  almost  a  half  a  century  ago,  pathetically  says  that  they  — 

"would  make  a  valuable  and  exceedingly  interesting  contribution  to  the  his- 
torical literature  of  the  Great  West,  and  a  most  desirable  addition  especially  to 
these  annals.  But  after  the  most  diligent  inquiry  and  patient  search  this  writer 
has  been  unable  to  discover  them. "  * 

Enough  is  known  of  these  "  Articles,"  however,  to  show  that  they 
formed  a  genuine  popular  constitution  and  that  they  were  adopted 
by  the  voice  of  the  freemen  in  what  appears  to  have  been  a  real  folk- 
moot.2  In  this  assembly  commissioners  or  representatives  were 
elected  from  whom  were  chosen  the  tribunal  of  five  members  which 
was  to  carry  on  the  work  of  administration,  executive  and  judicial. 
But  the  historians  all  speak  of  the  adoption  of  the  "  Articles  "  before 
mentioning  the  election  of  commissioners,3  and  it  could  hardly  have 
been  the  latter  who  gave  the  "  Articles  "  validity.  But  the  details  of 
their  adoption,  so  unfortunately  wanting,  were  probably  reproduced 
a  few  years  later,  in  connection  with  another  instrument  of  which 
this  was  the  parent,  and  to  the  later  one  we  may  well  turn  for  light 
as  to  the  methods  of  constitution-making  in  this  primitive  community. 

2.    The  Nashborough  Articles  (1780) 

The  work  of  James  Robertson  was  not  ended  by  the  adoption  of 
the  Watauga  Compact.  Notwithstanding  his  residence  among  the 
Regulators  and  his  prominent  part  in  the  episode  just  reviewed,  he 
was  destined  to  have  a  yet  larger  share  in  the  constitutional  achieve- 
ments of  this  frontier  people.  After  a  sojourn  of  about  ten  years  at 
Watauga,  during  most  of  which  he  was  active  in  all  its  affairs,  the 
spirit  of  adventure  led  him  to  organize  a  new  colony  for  settlement 
on  the  great  bend  of  the  Cumberland  River  some  three  hundred  miles 
to  the  west.  In  1779  he  led  the  advance  guard  thither,  and  the  fol- 
lowing year  he  founded  Nashborough,  nucleus  of  the  future  capital 
of  Tennessee.  Hardly  had  the  families  of  the  settlers  arrived  when 

1  Ramsey,  "Annals  of  Tennessee,"  107. 

2  "The  first  step  taken  by  the  Watauga  settlers,  when  they  had  determined  to 
organize,  was  to  meet  in  general  convention,  holding  a  kind  of  folk-thing,  akin  to  the 
New  England  town-meeting."  —  Roosevelt,  "Winning  of  the  West,"  I,  184. 

3  Ramsey,  "Annals  of  Tennessee,"  106;   Roosevelt,  I,  183;    Phelan,  "History  of 
Tennessee"  (Boston,  1888),  33. 


122  THE   PEOPLE'S   LAW 

Robertson  called  a  convention  of  delegates  from  the  little  forts  that 
composed  the  settlement  to  meet  at  Nashborough  for  the  purpose  of 
organizing  a  government.  One  of  the  results  of  this  meeting,  which 
opened  on  May  i,  1780,  was  the  adoption  of  a  "compact  of  govern- 
ment,"1 of  which  Robertson  is  believed  to  have  been  the  principal 
author.  His  prominence  in  the  making  of  the  Watauga  constitu- 
tion, upon  which  the  new  instrument  was  largely  modelled,2  together 
with  the  fact  that  Robertson  both  summoned  the  convention3  and 
by  it  was  chosen  president  of  the  colony,4  strongly  indicate  that  the 
compact  was  principally  his  handiwork.  Just  as  at  Watauga  the 
tribunal  of  five  managed  the  affairs  of  the  settlement,  so  this  Cumber- 
land compact  provided  for  a  central  body  of  twelve  chosen  from  the 
different  "stations"  by  popular  vote  and  variously  known  as  notables, 
judges,  arbitrators,  and  triers.  This  body 5  had  final  jurisdiction  to 
try  title  to  land,  actions  to  recover  money,  and  criminal  causes.  It 
also  had  charge  of  probate  matters,  the  solemnization  of  marriages, 
and  the  administration  of  military  affairs. 

"We  find,"  says  Phelan,8  "the  same  incidents  of  government  in  the  Cumber- 
land settlement  which  we  found  on  the  Watauga  and  which  existed  in  some  shape 
or  manner  upon  the  banks  of  the  Trent  and  the  Ouse.  The  articles  of  agree- 
ment are  a  modern  reproduction  of  the  powers  and  customs  of  the  ancient  court 
leet." 

Speaking  of  the  compact,  Mr.  Gilmore  observes:7 — 

1  "This  document  was  found  in  1846  in  an  old  trunk  which  had  belonged  to  one 
of  the  original  twelve  (committee),  and  it  is  now  in  possession  of  the  Tennessee  Histori- 
cal Society."  —  Gilmore,  "The  Advance  Guard  of  Western  Civilization"  (New  York, 
1888),  ii. 

2  Richard  Henderson,  whose  "Transylvania"  experiment  is  considered  in  connec- 
tion with  Kentucky  (post,  131),  had  meanwhile  removed  to  the  Cumberland  settlement 
and  was  active  in  establishing  the  government.     Mr.  Phelan  ("History  of  Tennessee," 
119)  ascribes  to  him  a  part  in  the  framing  of  the  Nashborough  instrument  equal,  if 
not  superior,  to  that  of  Robertson.     But,  as  President  Roosevelt  well  says  ("Winning 
of  the  West,"  II,  343,  note):  "The  marked  difference  between  the  Transylvania  and 
the  Cumberland  '  constitutions/  and  the  close  agreement  of  the  latter  with  the  Watauga 
articles,  assuredly  point  to  Robertson  as  the  chief  author." 

3  Roosevelt,  II,  342. 

4  Gilmore,  "The  Advance  Guard  of  Western  Civilization"  (New  York,  1888),  n. 

6  President  Roosevelt  (II,  344-346)  gives  an  instructive  summary  of  its  powers. 

8  "History  of  Tennessee"  (Boston,  1888),  119.  President  Roosevelt  adds  that 
these  were  "profoundly  modified  to  suit  the  peculiar  needs  of  backwoods  life,  the  in- 
tensely democratic  temper  of  the  pioneers  and,  above  all,  the  military  necessities  of 
their  existence."  —  "Winning  of  the  West,"  II,  347. 

7  "The  Advance  Guard  of  Western  Civilization"  (New  York,  1888),  n. 


POPULAR   RATIFICATION   IN   COLONIAL   AMERICA         123. 

"It  is  a  remarkable  paper,  so  comprehensive,  so  wise  in  its  provisions,  and 
so  exactly  adapted  to  the  circumstances  of  the  settlement,  that  it  alone  would  rank 
Robertson  as  an  able  organizer  and  statesman." 

But  interesting  as  this  document  is  intrinsically,  its  chief  signifi- 
cance for  us  lies  in  the  manner  of  its  adoption.  For  this  primitive 
constitution  of  the  Cumberland  colony  was  not  put  into  effect  by  its 
draftsman  nor  even  by  the  convention  at  Nashborough.  That  body 
merely  put  it  into  form  and  agreed  to  its  provisions  in  order  that  it 
might  be  placed  before  the  freemen.  The  instrument  acquired  its 
force  and  validity  from  an  event  which  occurred  twelve  days  after  the 
convention  met.  "The  settlers  ratified  the  deeds  of  their  delegates," 
observes  Roosevelt,1  "on  May  i3th,  when  they  signed  the  articles, 
binding  themselves  to  obey  them,  to  the  number  of  two  hundred  and 
fifty-six  men."  2  This  instrument,  in  other  words,  was  not  a  piece  of 
legislation  enacted  by  a  delegate  body ;  it  was  a  genuine  compact  in 
which  every  settler  who  signed  was  a  partner  and  which  did  not  be- 
come operative  as  to  any  settler  until  he  signed. 

"Those  who  did  not  sign  were  treated  as  having  no  rights  whatever —  a 
proper  and  necessary  measure,  as  it  was  essential  that  the  naturally  lawless  ele- 
ments should  be  forced  to  acknowledge  some  kind  of  authority. "  3 

That  the  articles  were  to  derive  their  force  from  the  formally  ex- 
pressed consent  of  the  whole  body  of  the  freemen  is  clear  also  from 
their  contents. 

"We  think  it  our  duty,"  they  recite,  "to  associate  and  hereby  form  ourselves 
into  one  society  for  the  benefit  of  present  and  future  settlers;  and,  until  the  full 
and  proper  exercise  of  the  laws  of  our  country  can  be  in  use  and  the  powers  of 
government  exerted  among  us,  we  do  most  solemnly  and  sacredly  declare  and 
promise  each  other  that  we  will  faithfully  and  punctually  adhere  to,  perform 
and  abide  by  this  our  association,  and  at  all  times,  if  need  be,  compel  by  our  united 
force  a  due  obedience  to  these  our  rules  and  regulations. "  4 

This  language  could  not  be  appropriately  used  by  a  mere  body  of 
delegates.  It  was  plainly  intended  to  be  the  expression  of  the  whole 
people  when  they  should  adopt  it. 

Here,  then,  we  have  a  genuine  instance  of  complete  popular  con- 

1  "Winning  of  the  West,"  II,  343,  344. 

2  "All  but  one  of  whom,"  adds  Mr.  Gilmore,  "wrote  their  names  in  good  fair 
English."  —  "The  Advance  Guard  of  Western  Civilization"  (New  York,  1888),  n,  12. 

3  "Winning  of  the  West,"  II,  344. 

*  Quoted  in  Gilmore's  "Advance  Guard  of  Western  Civilization,"  12. 


124  THE   PEOPLE'S   LAW 

st it ut ion-making.  All  three  stages  are  represented,  —  the  framing, 
the  submission,  the  ratification.  We  do  not  know  that  all  these 
stages  were  so  clearly  marked  in  making  the  Watauga  constitution  of 
eight  years  before  (because,  as  we  have  seen,  the  records  are  miss- 
ing), but  we  have  strong  reason  to  believe  that  such  was  the  case. 
The  same  man  was  largely  instrumental  in  framing  each  document ; 
the  subject-matter  of  both  is  strikingly  similar ;  it  is,  to  say  the  least, 
improbable  that  there  was  any  marked  divergence  in  the  manner  of 
their  adoption. 

In  these  compacts  of  the  Scotch-Irish  settlers,  therefore,  we  have 
the  first  instance  of  direct  popular  ratification  anywhere  during  the 
eighteenth  century  —  the  first,  indeed,  since  the  laws  and  compacts 
which  had  issued  from  the  people  of  New  England  more  than  a  cen- 
tury before.  How  shall  we  account  for  such  a  phenomenon  in  this 
wilderness  of  the  South  ?  It  can  hardly  be  explained  on  the  ground 
of  conscious  imitation,  for  these  frontiersmen  were  unfamiliar  with 
constitutional  precedents.  James  Robertson,  who,  as  we  have  seen, 
had  most  to  do  with  both  of  these  primitive  compacts,  was  a  char- 
acter possessing  elements  of  greatness,  but  he  had  learned  little  from 
books.  It  is  even  said  that  his  wife  taught  him  to  read  after  their 
marriage.1  At  any  rate,  he  and  his  associates  could  scarcely  have 
known  aught  of  popular  law-making  in  the  New  England  of  the 
preceding  century. 

We  have  seen  that  Robertson  was  familiar  with  the  ways  of  the 
Regulators  to  whom  these  mountaineers  were  mostly  akin,  and  with 
" Husbands'  Relation,"  their  great  exponent.  But  the  books  which 
he  knew  most  about  were  "the  Bible  and  the  few  religious  works 
which  in  that  day  were  in  wide  circulation  in  the  colonies."  2  And 
when  we  are  searching  for  the  sources  from  which  Robertson  and  his 
fellow  Calvinists  acquired  the  idea  of  popular  ratification,  we  must  not 
overlook  the  church  with  which  they  were  affiliated. 

"The  expedient  [of  a  compact]  was  a  natural  one,"  says  Professor  Turner, 
to  Scotch-Irishmen  brought  up  on  Presbyterian  political  philosophy.3 

1  Roosevelt,  "  Winning  of  the  West "  (New  York,  1889),  I,  177;  Putnam,  "History 
of  Middle  Tennessee"  (Nashville,  1859),  21  et  seq.  Mr.  Gilmore  says  that  "this  is 
denied  by  his  descendants."  —  "Advance  Guard  of  Western  Civilization,"  30. 

'Gilmore,  "The  Advance  Guard  of  Western  Civilization"  (New  York,  1888),  30. 

8  "Western  State-Making  in  the  Revolutionary  Era,"  American  Historical  Re- 
view, I,  76. 


POPULAR   RATIFICATION   IN   COLONIAL   AMERICA         125 

"The  backwoods  Presbyterians,"  adds  Roosevelt,  "managed  their  church 
affairs  much  as  they  did  their  civil  government;  each  congregation  appointed 
a  committee  to  choose  ground,  to  build  a  meeting-house,  to  collect  the  minister's 
salary,  and  to  pay  all  charges,  by  taxing  the  members  proportionately  for  the 
same,  the  committee  being  required  to  turn  in  a  full  account,  and  receive  instruc- 
tions, at  a  general  session  or  meeting  held  twice  every  year. "  l 

Here  we  behold  a  practical  application  of  the  fundamental  doc- 
trines of  Calvinism  —  congregational  supremacy,  common  assent,  and 
the  equality  of  all  members.  But  it  was  not  alone  their  familiarity 
with  church  administration  which  made  these  frontiersmen  the  first 
constitution-makers  of  the  eighteenth  century.  For  the  ideas  under- 
lying the  popular  compacts  of  Watauga  and  the  Cumberland  were  a 
part  of  the  race  inheritance  of  their  framers.2 

"These  Irish  Presbyterians  .  .  .  were  fitted  to  be  Americans  from  the  very 
start;  they  were  kinsfolk  of  the  Covenanters;  they  deemed  it  a  religious  duty 
to  interpret  their  own  Bible,  and  held  for  a  divine  right  the  election  of  their 
own  clergy.  For  generations  their  whole  ecclesiastic  and  scholastic  systems  had 
been  fundamentally  democratic. "  3 

"Kinsfolk  of  the  Covenanters"  —  in  this  phrase  lies  the  key  to 
the  true  nature  and  source  of  these  backwoods  constitutions.  For 
what  was  the  Cumberland  compact  or  its  parent  instrument  of 
Watauga  but  a  "covenant"  like  that  which  the  Scotch-Presbyterian 
ancestors  of  these  colonists  had  put  forth  in  1638?  or  that  in  which 
the  people  of  the  three  kingdoms  joined  five  years  later  ? 4  And 
what  was  this  subscription  to  the  Nashborough  Articles  by  all  the 
settlers  but  a  repetition,  doubtless  unconscious,  of  the  process  by 
which  their  forebears,  even  in  Ulster,  had  given  their  assent  to  the 
seventeenth-century  covenants?  Even  the  restriction  of  the  benefits 
of  the  new  instrument  to  the  subscribing  settlers  was  a  feature  of  the 
old  covenants.  For  that  of  1643  required  its  signers  merely  to  "  assist 
and  defend  all  those  that  enter  [into]  this  league  and  covenant."  5 
With  all  these  precedents  the  Scotch-Irish  who  had  come  into  the 

1  "Winning  of  the  West"  (New  York,  1889),  I,  191. 

2  "  Descendants  of  men  who  had  fought  James  II.,  they  were  the  heirs  of  the  politi- 
cal philosophy  of   Knox  and  Andrew  Melville."  —  Turner,  "Western  State-Making 
in  the  Revolutionary  Era,"  American  Historical  Review,  I,  73. 

3  Roosevelt,  "Winning  of  the  West,"  I,  106. 

"As  the  Scotch-Irish  came  to  America,  they  brought  with  them  the  Solemn 
League  and  Covenant."  —  Phelan,  "History  of  Tennessee"  (Boston,  1888),  216. 
6  Clarendon,  "History  of  the  Rebellion  and  Civil  Wars"  (Oxford,  1849),  III,  218. 


126  THE   PEOPLE'S   LAW 

settlements  from  the  North  were  as  familiar  as  those  who  had  mingled 
with  the  Regulators  in  North  Carolina. 

3.    The  "Frankland"  Constitution 

Thus  did  these  pioneer  commonwealth-builders  of  the  South 
utilize  the  materials  of  the  old  world  quarries.  But  their  achieve- 
ments did  not  cease  with  the  instruments  above  reviewed  nor  even 
with  the  close  of  the  Revolution.  About  a  year  after  the  last-named 
event  these  same  settlements,  with  others  which  had  been  formed 
meanwhile,  were  organized  into  a  single  commonwealth  which  had 
an  independent  existence  of  some  four  years,  and  which  is  known  in 
history  as  the  "state  of  Franklin."  *  On  December  14,  1784,  a  popu- 
larly chosen  convention  assembled  at  Jonesboro,2  in  what  is  now 
eastern  Tennessee,  and  framed  a  constitution  for  the  new  state 
which  it  named  the  "  commonwealth  of  Frankland."  3  This  instru- 
ment did  not  provide  for  its  direct  submission  to  the  people.  But  on 
the  other  hand  the  members  of  this  convention  were  too  much  im- 
bued with  the  doctrine  of  " common  assent"  to  assume  the  power  of 
proclaiming  the  new  constitution  in  force.  It  was,  therefore,  merely 

"agreed  to,  subject  to  the  ratification,  modification  or  rejection  of  a  future  con- 
vention directed  to  be  chosen  by  the  people  and  to  meet  on  the  i4th  of  November, 
1785,  at  Greenville.  Ample  time  was  thus  given  to  examine  the  merits  and  defects 
of  the  new  organization,  and,  by  discussing  them  in  detail,  to  harmonize  conflicting 
opinions,  and  to  secure  to  it  general  public  sentiment  and  popular  favour. "  * 

This  action  was  not  the  only  evidence  of  a  desire  on  the  part  of 
these  delegates  to  consult  the  people.  Besides  containing  a  liberal 
Bill  of  Rights,5  guaranteeing  religious  freedom  for  all  sects,  and  re- 
quiring all  officers  to  be  chosen  directly  by  the  people  (a  most  ad- 
vanced provision  for  that  day),  the  proposed  constitution  provided : — 

"Sec.  7.  That  the  laws,  before  they  are  enacted,  may  be  more  maturely 
considered,  and  the  danger  of  hasty  and  injudicious  determinations  as  much  as 
possible  prevented,  all  bills  of  a  public  and  general  nature  shall  be  printed  for  the 
consideration  of  the  people,  before  they  are  read  in  the  General  Assembly  the  last 

1  See  Alden,  "The  State  of  Franklin,"  American  Historical  Review,  VIII,  271. 

2  Id.  274.     See  Ramsey,  "Annals  of  Tennessee"  (Philadelphia,  1860),  292  et  seg., 
for  an  account  of  this  convention.     John  Sevier  was  its  President. 

3  I.e.  "the  land  of  freemen."     The  convention  of  the  following  year  officially 
named  it  Franklin  "in  honour  of  Benjamin  Franklin."  —  Ramsey,  324. 

4  Id.  293. 

6  See  id.  325  et  seq.  for  the  text  of  the  constitution  so  far  as  preserved. 


POPULAR   RATIFICATION    IN   COLONIAL   AMERICA         127 

time  for  debate  and  amendment;   and  except  on  occasions  of  sudden  necessity, 
shall  not  be  passed  into  laws  before  the  next  session  of  the  Assembly. "  l 

This  appears  to  have  been  the  nearest  approach  to  the  referendum 
in  general  legislation  since  the  Rhode  Island  experiments  of  the 
seventeenth  century.2  But  there  are  other  features  indicating  even 
greater  antiquity.  Section  20  provided  that :  — 

"The  freemen  of  each  county  shall,  for  the  purpose  of  ease,  justice  and  con- 
veniency  in  holding  elections  and  other  public  affairs,  be  divided  into  districts,  as 
near  one  hundred  in  each  as  local  circumstances  will  admit. "  3 

This  reads  like  a  revival  or  at  least  an  imitation  of  the  old  English 
"hundred,"  which,  though  it  had  existed  in  several  of  the  colonies, 
at  least  in  name,  was  now  moribund  in  all  save  Delaware.4  But  the 
purpose  of  this  district  is  more  interesting  even  than  its  history. 
Section  21  of  the  proposed  constitution  was  as  follows:  — 

"The  freemen  of  each  district  shall  meet  upon  the  second  Tuesday  of  Feb- 
ruary forever  (sic)  and  at  their  first  meeting  elect  three  of  their  own  members, 
who  shall  be  called  Registers,  and  who  shall  keep  a  fair  alphabetical  roll  of  the 
freemen  of  the  district.  Any  two  of  them  agreeing,  or  upon  advice  of  any  five 
freemen,  shall  have  power  to  assemble  the  freemen  of  their  district  to  consult 
for  the  common  good,  give  instructions  to  their  representatives,  or  apply  to  the 
Legislature  for  redress  of  grievances  by  address,  petition  or  remonstrance.  They 
shall  preside  in  all  civil  district  elections,  shall  meet  twice  or  oftener,  in  the  year, 
to  deliberate  upon  and  prepare  to  lay  before  the  people  such  matters  as  may  be 
necessary  for  them  to  consider."  5 

It  would  almost  seem  here  as  though  the  constitution-maker  was 
taking  as  his  model  the  New  England  town  meeting.  But  he  was 
more  probably  merely  imitating  the  organization  of  the  local  church. 
For,  aside  from  the  fact  that  Rev.  Samuel  Houston  was  one  of  the 
leading  spirits  in  the  convention,6  there  are  other  traces  of  clerical 
influence.  Officeholders  must  not  only  be  free  from  infractions  of 
the  moral  law,  Sabbath-breaking  included,  but  must  also  believe  in 
the  Trinity,  the  inspiration  of  the  scriptures,  and  "a  future  state  of 
rewards  and  punishments."7 

On  the  other  hand  this  instrument  would  disqualify  ministers, 

1  Ramsey,  "Annals  of  Tennessee"  (Philadelphia,  1860),  328. 

2  Except  the  similar  provision  in  the  Pennsylvania  instrument  of  1776. 
Ramsey,  "  Annals  of  Tennessee  "  (Philadelphia,  1860),  330. 

See  Howard,  "Local  Constitutional  History"  (Baltimore,  1889),  272  et  seq. 
Ramsey,  330. 

Alden,  "The  State  of  Franklin,"  American  Historical  Review,  VIII,  274. 
Constitution  of  Frankland,  Sec.  3. 


128  THE  PEOPLE'S   LAW 

lawyers,  and  " doctors  of  physic"  from  membership  in  the  legislature, 
which  was  to  be  unicameral  and  to  which  only  landowners  were  to 
be  eligible.1  Such  inconsistencies  as  these  occasioned  great  opposi- 
tion when  what  was  in  form  an  election  of  delegates  to  the  second 
convention  but  in  reality  a  submission  of  the  instrument,  took  place. 
But  it  was  these  latter  and  not  the  democratic  features  which  were 
obnoxious.2  Indeed  the  democratic  spirit  was  most  apparent  in  the 
opposition.  "Instructions  were  poured  in  upon  the  convention  from 
all  parts  of  the  country  in  opposition  to  the  exceptionable  clauses."3 
In  this  situation  the  delegates  appointed  a  committee  to  draft  a  new 
instrument  for  their  consideration.4  This  committee  is  said  to  have 
taken  as  the  basis  of  its  work  the  existing  constitution  of  North  Caro- 
lina, "  and  together  with  it  all  political  helps  that  the  thirteen  Consti- 
tutions, the  instructions  of  the  people,  and  any  other  quarter  might 
afford."  5  We  may  suspect,  however,  that  its  chief  model  after  all 
was  the  "Frankland"  constitution.  For  when  the  committee  re- 
ported and  its  work  was  rejected, — 

"the  friends  of  the  Report  of  the  Committee  strove  to  introduce,  but  all  in  vain, 
some  material  parts  of  their  plan,  viz.,  a  single  house  of  Legislation,  equal  and  ade- 
quate representation,  the  exclusion  of  attorneys  from  the  Assembly,  etc.,  and 
failing  in  these  most  important  points,  by  the  unanimous  consent  of  the  whole 
convention,  obtained  leave  to  enter  upon  the  Journals  their  dissent  to  what  had 
been  carried  in  Convention,  and  also  to  hold  out  to  the  people,  for  their 
consideration,  the  Report  of  the  Committee."  8 

These  "material  parts"  and  "most  important  points,"  it  will  be 
noticed,  were  the  novel  features  of  the  "Frankland"  instrument. 
Rejecting  even  this  modified  form  of  it,  the  convention  "by  a  small 
majority"  7  voted  to  adopt  a  substantial  reenactment  of  the  North 

1  Constitution  of  Frankland,  Sees,  i,  3. 

2  Ramsey,  "Annals  of  Tennessee,"  323;   Phelan,  "History  of  Tennessee,"  85. 

3  Ramsey,  323.     Cf.  Houston's   preface  to  the  proposed   constitution  of    1785, 
American  Historical  Review,  VIII,  274,  where  he  says  that  these  instructions  from  the 
people  "showed  that  there  was  a  great  diversity  and  contrariety  of  sentiments  among 
them." 

4  Ramsey  says  (323)  that  the  "Frankland  constitution  was  rejected  by  a  small 
majority."     Houston,  who  was  a  member  of  the  convention,  writes  as  though  no  action 
was  taken  directly  thereon,  but  that,  "after  some  debate,"  the  convention  proceeded 
to  appoint  the  committee.     See  American  Historical  Review,  VIII,  274. 

6  Id. 

6  From  Houston's  preface,  id.  275. 

7  Ramsey,  324. 


POPULAR   RATIFICATION   IN   COLONIAL   AMERICA         129 

Carolina  constitution.1  But  Houston  and  the  supporters  of  the  com- 
mittee's draft  continued  their  efforts.  They  formed  an  organization 
called  the  "Frankland  Commonwealth  Society,"  and  caused  the  in- 
strument of  1784  to  be  printed  and  circulated  among  the  people  with 
Houston's  preface  and  a  pamphlet  entitled  "  Principles  of  Republican 
Government,  by  a  Citizen  of  Frankland."  2  But  by  this  time  it  was 
doubtless  beginning  to  be  understood  among  the  people  that  their 
state  was  only  a  temporary  one,  destined  to  be  absorbed,  as  for  a 
time  most  of  it  was,  by  North  Carolina.  And  so  for  the  balance  of 
its  brief  career  it  continued  under  the  fundamental  law  of  its  eastern 
neighbor. 

4.    The  "Association"  of  1788 

But  the  genius  of  these  frontiersmen  for  constitution-making  was 
not  yet  exhausted.  Even  after  the  greater  part  of  the  state  of  Franklin 
had  become  reunited  to  North  Carolina  the  settlers  of  a  portion  of  it 
which  had  never  been  under  the  jurisdiction  of  that  state,  and  which 
was  thus  left  without  a  government,  organized  one  of  their  own  in 
1788,  by  forming  an  "association"  and  adopting  articles.3  These 
were  not  only  modelled  on  the  Watauga  compact  of  sixteen  years 
before,  but  they  also  bear  on  their  face  the  evidence  of  having  been 
ratified  by  the  settlers. 

"We  the  subscribers"  they  recite,  "inhabiting  south  of  Holston,  French  Broad 
and  Big  Pigeon  Rivers  ...  for  the  preservation  of  peace  and  good  order,  and  the 
security  of  life,  liberty  and  property,  .  .  .  enter  into  the  following  social  compact." 

Here  we  have  another  covenant.  It  clearly  operates  to  benefit 
and  bind  only  the  "  subscribers,"  and  is  effective  as  to  no  others. 

"The  association  proved  to  be  a  good  substitute,"  says  Ramsey,4  "for  a 
more  formal  and  perfect  system  of  government.  This  regime  continued  until 
after  the  country  became  the  Territory  of  the  United  States  south  of  the  River 
Ohio,  and  was  then  provided  for  as  the  '  county  of  Sevier,'  in  1794." 

Thus  for  nearly  a  score  of  years  these  foundation  builders  of  the 
future  commonwealth  of  Tennessee  were  engaged  in  the  making  of 

1  The  question  seems  to  have  been  complicated  with  a  personal  feud  between 
Tipton,  an  advocate  of  the  "Frankland"  constitution,  and  Sevier,  who  favored  the 
North  Carolina  model.     See  Roosevelt,  "Winning  of  the  West,"  III,  167. 

2  This  is  Ramsey's  version  (324),  based  on  a  letter  to  him  from  Houston,  written 
a  half  a  century  after  the  event.     Alden  (American  Historical  Review,  VIII,  275)  says 
that  the  instrument  printed  and  prefaced  was  that  reported  by  the  committee. 

8  Their  text  is  given  in  Ramsey,  435,  436.  4  Id.  437. 

K 


130  THE  PEOPLE'S   LAW 

popular  constitutions.  They  needed  no  town  meetings  to  preserve 
the  idea  until  their  independence  could  be  achieved,  for  they  put  it 
in  actual  practice  both  at  the  dawn  of,  and  during,  the  Revolution. 
Their  experience  is  a  most  important,  though  much  neglected,  chap- 
ter in  American  constitutional  development,  and  to  it  is  applicable 
a  remark  once  made  of  Rhode  Island,  that  "the  diversity  of  charac- 
ter and  interest  in  the  smallest  of  the  colonies  is  another  illustration 
of  the  truth  taught  by  Greek  and  Italian  history,  that  it  is  not  always 
the  large  States  that  afford  the  most  instructive  data  for  political 
history."  J 

E.    Virginia 

The  Scotch-Irish  appear  to  have  settled  in  Virginia  somewhat 
later  than  in  the  other  colonies  whose  history  will  be  reviewed  in 
this  connection,  and  the  material  relating  to  them  is  less  abundant. 
It  is  known,  however,  that  as  early  as  1737  a  Scotch-Irish  colony  was 
planted  in  what  is  now  West  Virginia.2  Even  before  this  there  had 
been  some  settlements  of  these  immigrants  farther  east,3  and  in 
course  of  time  they  were  dispersed  throughout  not  only  the  regions 
west  of  the  mountains,  but  also  a  large  part  of  all  western  Virginia.4 
These  Scotch-Irish  of  the  Old  Dominion  appear  to  have  left  few 
traces  of  their  early  civic  life  in  their  new  home.  We  catch  a  glimpse 
of  it,  however,  at  the  outbreak  of  the  Revolution. 

When  the  first  Virginia  constitutional  convention  was  in  session 
at  Williamsburg,  it  received  a  communication  from  the  inhabitants 
of  what  is  known  as  the  "Pendleton  District,"  lying  west  of  Fincastle 
County,5  stating  that  they  had  "  formed  themselves  into  a  Society." 8 
This  item  of  information  is  meagre,  but,  taken  in  connection  with 
what  was  occurring  farther  to  the  southwest,  it  clearly  indicates  that 
the  Scotch-Irish  settlers  of  western  Virginia  were  at  that  moment 
duplicating  the  experience  of  their  brethren  at  Watauga.  Doubtless 

1  The  Nation,  XXXIX,  117. 

2  Lewis,  "History  of  West  Virginia"  (Philadelphia,  1889),  68  et  seq. 

3  Hanna,  "The  Scotch-Irish"  (New  York,  1902),  II,  44  et  seq. 

4  Id.,  and  frontispiece  containing  a  chart  of  Scotch-Irish  settlements. 

6  This  was  one  of  the  extreme  southwestern  counties  existing  only  from  1772  to 
1776.  Lewis,  "History  of  West  Virginia"  (Philadelphia,  1889),  48,  2. 

8  Turner,  "Western  State-Making  in  the  Revolutionary  Era,"  American  Historical 
Review,  I,  76  note.  Cf.  Ranck's  "  Boonesborough,"  Filson  Club  Publications,  No.  16 
(Louisville,  1901),  244. 


POPULAR   RATIFICATION    IN   COLONIAL  AMERICA         131 

if  the  record  of  their  proceedings  had  been  preserved,  it  would  have 
disclosed  a  written  covenant  similar  to  those  which  so  narrowly 
escaped  oblivion  in  Tennessee  and  the  Carolinas. 

F.   Kentucky 

One  of  the  results  of  the  explorations  of  Daniel  Boone  was  the 
formation  of  a  syndicate  which  was  connected  for  a  time  with  the 
Watauga  settlement,  in  North  Carolina,  called  the  Transylvania 
Company,  which  purchased  a  large  quantity  of  land  in  the  newly 
explored  region.  The  company  consisted  of  nine  proprietors,  and  at 
its  head  was  Richard  Henderson,1  who  was  a  lawyer  of  considerable 
learning  for  colonial  times  and  had  been  one  of  the  Associate  Justices 
of  the  province  of  North  Carolina. 

In  the  spring  of  1775,  Henderson  went  to  Kentucky  for  the  pur- 
pose of  establishing  a  government  for  the  country  purchased  by  the 
company,  and  which  was  named  "the  colony  of  Transylvania."2 
Before  leaving  North  Carolina,  Henderson  appears  to  have  had  in 
mind  the  institution  of  a  proprietary  province.3  But,  as  Turner  says : 4 
"If  ever  the  Carolina  proprietary  had  been  his  model,  it  suffered  a 
forest-change."  Henderson  was  of  Scotch-Irish  extraction,5  and  the 
plan  finally  evolved  shows  the  influence  of  ancestral  ideas.  More- 
over, he  had  reason  to  be  familiar  with  the  "associations"  and  com- 
pacts of  the  North  Carolina  "Regulators."  He  had  encountered 
them  during  his  judicial  career,6  and  learned  in  a  practical  way  their 
strength  and  effectiveness.  And  he  appears  to  have  shared  their 
views,  for  he  is  said  to  have  resigned  his  judgeship  "out  of  sympathy 

1  See  a  brief  biographical  sketch  in  Collins,  "History  of  Kentucky,"  336.     Cf. 
Wheeler,  "History  of  North  Carolina,"  I,  102;  "Richard  Henderson:   The  Founder 
of  Transylvania,"  Chautauquan  (Dec.  1903),  XXXVIII,  366,  by  Archer  Butler  Hulbert. 

2  See  Henderson's  Journal,  Collins,  500;  Turner,  "Western  State-Making  in  the 
Revolutionary  Era,"  A merican  Historical  Review,  I,  78;  Roosevelt,  "Winning  of  the 
West"  (New  York,  1889),  I,  248. 

"The  memories  of  Clarendon  and  Monk  and  the  Fundamental  Constitutions 
of  John  Locke  would  seem  to  have  taken  possession  of  the  mind  of  the  Carolina 
jurist,  and  visions  of  a  new  palatinate  in  the  backwoods  to  have  arisen  before  him."  — 
Turner,  American  Historical  Review,  I,  78. 

«  Id.  79. 

5  Collins,  "History  of  Kentucky,"  336;  Turner,  American  Historical  Review,  I,  78. 

B  At  Hillsboro  in  Sept.,  1770,  the  sessions  of  his  court  were  broken  up  by  the 
Regulators,  and  he,  "finding  it  impossible  to  hold  court,  left  Hillsboro  in  the  night." 
—  Wheeler,  "  History  of  North  Carolina"  (Philadelphia,  1885),  I,  57. 


132  THE  PEOPLE'S   LAW 

with  the  Regulators."  1  At  any  rate  the  compact  theory  entered 
largely  into  the  form  of  government  which  he  devised.  He  called  a 
convention  to  meet  at  Boonesborough,  and  "made  out  writings  for 
the  different  towns  or  settlements  to  sign."  2  He  says:  — 

"We  were  in  four  distinct  settlements.  Members  or  delegates  [should  be 
elected]  from  every  place  by  free  choice  of  Individuals,  they  first  having  entered 
into  writing  solemnly  binding  themselves  to  obey  and  carry  into  Execution  such 
Laws  as  representatives  should  from  time  to  time  make,  concurred  with  by  a 
Majority  of  the  Proprietors  present  in  the  Country."3 

The  convention,  which  was  really  intended  to  be  a  legislature, 
met  on  May  23,  1775,  under  a  spreading  elm  which  Henderson  refers 
to  as  "this  divine  tree,"  and  upon  which  he  discourses  graphically  in 
his  Journal.4  Although  the  initial  engagements  of  the  Revolution 
had  already  been  fought,  Henderson  seems  not  to  have  known  it, 
for  he  tells  the  convention  in  his  opening  address,  which  is  really  a 
superior  production  both  in  form  and  substance,5  to 

"Take  for  your  guide  as  much  of  the  spirit  and  genius  of  the  laws  of  England 
as  can  be  interwoven  with  those  of  this  country.  We  are  all  Englishmen,  or, 
what  amounts  to  the  same,  ourselves  and  our  fathers  have,  for  many  genera- 
tions, experienced  the  invaluable  blessings  of  that  most  excellent  constitution,  and 
surely  we  cannot  want  motives  to  copy  from  so  noble  an  original.' ' 8 

He  also  tells  them,  however,  that  "all  power  is  originally  in  the 
people,"  7  and  on  the  first  business  day  of  the  session  a  committee 
was  appointed  "to  draw  up  a  compact  between  the  proprietors  and 
the  people  of  this  colony."  8  Two  days  later  the  committee  reported 
what  was  styled  in  the  preamble  a 

"contract  and  agreement"  between  "the  proprietors  of  the  colony  of  Transyl- 
vania of  the  one  part,  and  the  representatives  of  the  people  of  said  colony  in  con- 
vention assembled,  of  the  other  part."  ' 

This  document  has  been  called  the  "Kentucky  Magna  Charta,"10 
and  was  really  quite  an  advanced  instrument,  containing  most  of  the 

Gilmore,  "Rear  Guard  of  the  Revolution"  (New  York,  1889),  39. 

Henderson's  "Journal,"  Collins,  "History  of  Kentucky"  (Louisville,  1877),  500. 

Turner,  "  Western  State-Making  in  the  Revolutionary  Era,"  American  Historical 
Review,  I,  79. 

Collins,  500. 

Roosevelt  remarks  that  "Henderson  .  .  .  addressed  them,  much  as  a  crown 
governor  would  have  done."  —  "Winning  of  the  West,"  I,  262.  The  address  is  printed 
in  Collins,  502,  503.  e  Collins,  503.  7  Id.  502.  8  Id.  505. 

9  Id.  506,  507,  where  the  instrument  is  set  out  in  full.  10  Id.  337. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA         133 

leading  provisions  to  be  found  in  the  first  state  constitutions,  which 
it  antedated  almost  a  year.  It  was  signed  by  three  of  the  proprietors 
on  their  own  behalf  and  by  the  chairman  of  the  convention  on  be- 
half of  the  people. 

On  the  day  of  the  signing  of  this  compact  the  convention  ad- 
journed, ostensibly  to  meet  in  the  following  September,  but  in  reality 
never  to  reassemble.  The  Virginia  legislature  declared  the  Tran- 
sylvania purchase  void  *  and  the  colonial  government  was  abandoned. 
But  this  interesting  constitutional  experiment  was  not  the  only  in- 
stance of  the  covenant  idea  among  these  first  settlers  of  Kentucky. 
Even  before  the  events  above  described  they  had  applied  it  to  such 
a  common,  though  to  them,  most  important,  enterprise  as  the  raising 
of  a  crop  of  corn  which  they  had  planted. 

"Companies  were  organized  to  work  it  in  common,  the  members  signing 
an  agreement  to  appear  every  morning  at  the  blast  of  a  horn  or  sound  of  a  drum 
and  labor  in  the  field  or  stand  guard  while  others  worked  as  the  'captain'  re- 
quired." 2 

About  four  years  later  we  find  the  Boonesborough  settlers  enter- 
ing into  an  " association "  for  a  similar  purpose  "for  their  own  and 
the  public  good,"  and  making  written  regulations  to  govern  the 
enterprise.3  We  shall  see  how,  barely  a  dozen  years  later,  this  early 
introduction  of  the  compact  idea  into  Kentucky  bore  fruit. 

G.    Mississippi 

Later  than  any  of  these  experiments  was  one  made  in  the  region 
afterward  known  as  Mississippi.  While  still  under  British  rule  this 
region  was  settled  by  Scotch  and  Scotch-Irish  4  who  found  the  gov- 

1  See  the  resolution  reprinted  in  Ranck's  "  Boonesborough,"  Filson  Club's  Publi- 
cations, No.  16  (Louisville,  1901),  253. 

2  Id.  23. 

3  Turner,  "Western  State-Making  in  the  Revolutionary  Era.,"  American  Histori- 
cal Review,  I,  76,  note,  who  says  that  the  text  is  in  the  Louisville  News  Letter,  July  18, 
1840.     Cf.  Ranck's  "Boonesborough,"  107. 

4  A  contemporary  historian  observes :  "  The  Scotch-Irish,  consisting  of  emigrants 
from  the  north  of  Ireland,  descendants  of  Scotch  parents,  intermarried  with  the  Irish, 
were  numerous  in  Pennsylvania,  Virginia,  and  North  Carolina  in  1775,  and  generally 
took  up  arms  for  the  colonies,  but  many  of  them,  finding  their  neighbors  and  friends 
divided,  and  the  feeling  becoming  more  vindictive  every  day,  followed  the  British  au- 
thorities into  Florida,  and  were  among  the  earliest  and  most  valued  settlers  in  the 
Natchez  District."  —  Claiborne,  quoted  inLowryand  McArdle's  "  History  of  Missis- 
sippi," 132. 


134  THE  PEOPLE'S  LAW 

eminent  of  the  Spaniards,  when  they  regained  control,  exceedingly 
obnoxious ;  and  this  feeling  was  aggravated  by  the  delays  in  evacuat- 
ing after  the  cession  to  the  United  States.  During  these  troubles  with 
the  Spanish  government  in  1797,  the  settlers  at  Walnut  Hills  (now 
Vicksburg)  assembled  in  a  mass  meeting  and  appointed  a  "Com- 
mittee of  Safety,"  l  which  thereupon  proceeded  to  draft  the  following 
proposals,  which  were  finally  accepted  by  the  governor  and  continued 
for  a  considerable  time  to  regulate  the  affairs  of  the  community :  - 

"  ist.  The  inhabitants  of  the  district  of  Natchez,  who,  under  the  persuasion 
that  they  were  citizens  of  the  United  States,  agreeably  to  the  treaty,  assembled 
and  embodied  themselves,  are  not  to  be  prosecuted  or  injured  on  that  account 
but  to  stand  exonerated  and  acquitted. 

"2nd.  The  inhabitants  of  the  district  above  the  thirty-first  degree  of  north 
latitude  are  not  to  be  embodied  as  militia,  or  to  be  called  upon  to  aid  in  any  mili- 
tary operation,  except  in  case  of  Indian  invasion,  or  the  suppression  of  riots, 
during  the  present  state  of  uncertainty,  owing  to  the  late  treaty  between  His 
Catholic  Majesty  and  the  United  States,  not  being  yet  fully  carried  into  effect. 

"3rd.  The  laws  of  Spain  in  the  above  district  shall  be  continued,  and  are 
on  all  occasions  to  be  executed  with  mildness  and  moderation;  nor  shall  any 
inhabitant  be  transported  as  a  prisoner  out  of  his  government  on  any  pretext 
whatever.  And  notwithstanding  the  operation  of  the  Spanish  laws  is  here  ad- 
mitted, yet  the  inhabitants  personally  shall  be  considered  as  neutrals,  in  the 
present  state  of  uncertainty. 

"4th.  The  committee  engage  to  recommend  it  to  their  constituents  and  to 
the  utmost  of  their  power  will  endeavor  to  preserve  the  peace  and  tranquillity  of 
the  district,  and  the  due  execution  of  justice."  2 

Other  evidences  of  popular  government  and  legislation  appear  in 
the  same  community  later  in  the  year.3 


The  church  covenant  has  already  been  suggested4  as  the  germ 
and  forerunner  of  the  popular  written  constitution.  It  is  true  that 
this  distinction  has  been  claimed  for  another  instrument.5  Even  of 
the  New  England  constitutions  it  has  been  said :  — 

"  The  provincial  charter  bridges  the  gulf  between  the  Middle  Ages  and  our 
times.  .  .  .  The  new  instrument  [the  Massachusetts  charter  of  1691],  though 

1  Lowry  and  McArdle,  150;  Monette,  "Valley  of  the  Mississippi"  (New  York, 
1848),  I,  527. 

2  Lowry  and  McArdle,  151.  3  Id.  153.  4  Ante,  25. 

5  "The  germ  of  the  written  constitution  is  found  in  the  Colonial  Charter  govern- 
ments."—  Davis,  "American  Constitutions,"  Johns  Hopkins  University  Studies,  III, 
470.  See  also  Fisher,  "Evolution  of  the  Constitution  of  the  United  States "  (Phila- 
delphia, 1897),  Chap.  II. 


POPULAR   RATIFICATION   IN   COLONIAL  AMERICA         135 

still  in  form  a  charter  of  incorporation,  was  in  fact  a  written  constitution  of 
government,  such  as  now  exists  in  the  United  States.  .  .  .  Such  is  the  history 
of  the  written  constitution,  from  its  germ  in  the  ancient  charters  of  the  mediaeval 
guilds,  through  the  era  of  the  trading  company  and  the  phase  of  colonial  charters, 
down  to  its  latest  development  as  it  now  exists,  —  the  fundamental  law  of  the 
American  republics." * 

But  a  close  comparison  of  these  two  classes  of  instruments  dis- 
closes few  really  common  features.  Both  were  written  and  some 
of  their  phraseology  was  similar.  But  these  were  merely  formal 
matters.  Intrinsically,  in  character  and  substance,  and  historically, 
in  origin  and  mode  of  making,  the  two  were  widely  different,  and 
even  represented  opposing  theories  of  government.  The  charter 
was  a  recital  of  concessions  —  often  wrested  by  force  or  grudgingly 
granted  as  in  the  case  of  the  greatest  of  all,  Magna  Charta  —  from 
a  superior  to  an  inferior.  The  popular  constitution  is  an  agreement 
among  equals,  deriving  its  force,  like  all  pacts,  from  the  assent  of  the 
contracting  parties.  The  charter,  therefore,  marks  the  subjection  of 
the  people ;  the  popular  constitution  evidences  at  once  their  equality 
and  their  sovereignty.  No  one  ever  thought  of  consulting  the  people 
before  issuing  a  charter.  It  is  true  that  in  some  instances,  as  in  the 
case  of  the  second  charter  of  Rhode  Island,  the  people,  through  an 
appeal  to  the  crown,  were  able  to  obtain  the  insertion  of  certain 
desired  clauses  in  their  charter,  but  this  was  viewed  entirely  as  a 
matter  of  grace  and  not  as  a  right.  The  people  were  never  invited 
to  suggest,  and  much  less  to  sanction. 

Historically,  the  charter  is  of  mediaeval  if  not  feudal  origin;  an 
appendage  of  monarchy  or  at  least  of  oligarchy.2  The  popular  con- 
stitution, on  the  other  hand,  is  a  product  of  recent  times,  accompany- 
ing the  advanced  stages  in  the  rise  of  democracy.  No  despot  ever 
sanctioned  a  popular  constitution,3  but  most  of  the  American  colonial 
charters  were  granted  by  monarchs  who  were  notorious  reactionaries 
in  their  claims  of  absolute  and  irresponsible  power. 

1  Brooks  Adams,  "The  Embryo  of  a  Commonwealth,"  Atlantic  Monthly,  LIV,  615, 
616. 

2  "  The  charter  of  a  mediaeval  town  was  a  kind  of  written  contract  by  which  the 
town  obtained  certain  specified  immunities  or  privileges  from  the  sovereign  or  from  a 
great  feudal  lord,  in  exchange  for  some  specified  service  which  often  took  the  form  of 
a  money  payment.     It  was  common  enough  for  a  town  to  buy  liberty  for  hard  cash, 
just  as  a  man  might  buy  a  farm."  —  Fiske,  "Civil  Government"  (Boston,  1890),  188,  189. 

3  The  Napoleonic  plebiscites  were  not  exceptions;   they  were  rather  attempts  to 
obtain  the  appearance  of  popular  assent  without  its  reality. 


136  THE   PEOPLE'S  LAW 

The  social  contract  theory,  after  many  vicissitudes,  thus  came  to 
play  an  important  part  in  American  constitutional  development.  As 
an  explanation  of  the  origin  of  society  it  has  long  been  discarded; 
but  as  a  working  political  theory  it  was  a  reality  among  certain  of 
the  American  colonists.  Turner  says  of  the  Southern  Scotch  Pres- 
byterian ministers  that  they  "preached  not  only  the  theology  of 
Calvin,  but  the  gospel  of  the  freedom  of  the  individual,  and  the  com- 
pact theory  of  the  state."  l  And  this  was  true  in  all  the  Calvinistic 
communities  both  North  and  South,  for  these  men  learned  the  social 
contract  theory,  not  from  the  works  of  Locke  and  Rousseau,  but  from 
theological  treatises  and  from  practical  application  in  their  church 
affairs. 

The  political  instruments  of  the  Calvinists  were  the  first,  in  all 
modern  history  at  least,  to  receive  the  assent  of  the  people,  and  those 
of  America  were  the  only  ones  which  could  furnish  a  model  for  the 
popular  state  constitution.  Without  these  covenants  and  compacts 
we  might  still  have  had  written  constitutions  (for  the  charter  did 
accustom  the  people  to  limitations  upon  legislatures  and  officers)  but 
there  is  no  probability  that  they  would  have  been  popular  ones. 
They  would  doubtless  have  been  mere  academic  declarations  pro- 
claimed by  a  select  few  without  the  consent  or  participation  of  the 
people,  like  the  early  constitutions  of  the  states  which  were  not  in- 
fluenced by  the  Calvinists,  or  like  the  constitutions  of  most  European 
states  to-day.  It  was  through  the  covenant  that  the  idea  of  popular 
assent,  which  was  such  an  essential  feature  of  that  instrument,  was 
introduced  or  at  least  preserved,  and  with  this  important  truth  in 
mind  let  us  follow  the  transition  from  covenant  to  constitution. 

1  "Western  State-Making  in  the  Revolutionary  Era,"  American  Historical  Re- 
view, I,  73. 


B 

POPULAR    CONSTITUTION-MAKING    IN    THE 
UNITED    STATES 

CHAPTER  IX 

7.     ORIGIN  AND  DEVELOPMENT 

INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA 

THE  FIRST  YEARS 

A.    Introductory 

THE  original  American  state  constitutions  were  framed  in  accord- 
ance with  the  advice  of  the  Continental  Congress  in  the  early  years 
of  the  Revolutionary  War.  This  advice  was  given  in  response  to  an 
inquiry  from  the  Massachusetts  Provincial  Congress  in  May,  1775, 
which  was  followed  by  similar  requests  from  New  Hampshire,  Vir- 
ginia, and  South  Carolina.  To  the  first  the  Continental  Congress 
recommended  the  election  of  a  general  court  and  councillors  and 
to  the  others  the  establishment  of 

"such  form  of  government  as  in  their  judgment  will  best  promote  the  happiness 
of  the  people  and  most  effectually  secure  peace  and  good  order  in  their  colony 
during  the  continuance  of  the  dispute  with  Great  Britain. "  * 

These  first  constitutions  make  their  appearance  in  the  historic 
year,  1776,  when  such  instruments  were  framed  and  put  into  force 
without  popular  ratification  in  New  Hampshire,  South  Carolina, 
Virginia,  New  Jersey,  Delaware,  Pennsylvania,  North  Carolina,  and 
Maryland.  Not  only  were  all  of  these  adopted  without  submission, 
but  in  no  state,  except  Delaware,  were  delegates  elected  to  a  con- 
vention for  the  express  purpose  of  framing  a  constitution.2 

The  conditions  of  the  period  which  witnessed  the  adoption  of 

1  See  Thorpe,  "Constitutional  History  of  the  American  People"  (New  York  and 
London,  1898),  I,  no;  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago, 
1887),  sees.  127  et  seq. 

*  Thorpe,  "Constitutional  History"  (New  York  and  London,  1898),  I,  119. 

137 


138  THE   PEOPLE'S   LAW 

those  early  instruments  were  not  favorable  to  the  employment  of  ap- 
proved modern  methods  of  constitution-making.1  It  was  a  time  of 
turmoil  and  excitement,  and  the  speediest  and  simplest  plan  of 
putting  the  new  instruments  in  force  was  the  one  sought.  Indeed, 
the  presence  of  a  large  Loyalist  party  in  many  of  the  states  con- 
vinced the  leaders  of  the  Revolution  that  a  reference  of  the  consti- 
tutions to  the  people  would  be  unsafe.2 

Again,  the  prevailing  political  sentiment  of  that  day  was  yet 
aristocratic.  We  are  not  to  confound  the  cry  of  no  taxation 
without  representation  and  the  clamor  for  self-government  with  a 
genuine  desire  for  the  rule  of  the  masses.  That  ideal,  even  theoreti- 
cal, was  for  the  most  part  still  some  distance  in  the  future. 

Finally,  and  perhaps  foremost  among  the  causes  which  led  to  the 
enactment  rather  than  submission  of  all  the  constitutions  of  the  first 
two  years  of  American  independence,  was  the  fact  that  the  new  in- 
struments were  generally  regarded  as  temporary  in  character,  and 
as  having,  at  most,  the  force  of  ordinary  legislative  acts. 

Thus  it  was  that  these  first  constitutions  were  framed  and  put 
into  effect,  "by  the  existing  provincial  assemblies  or  by  conventions 
called  for  the  express  purpose,  and  were  not  submitted  to  the  people 
for  ratification."  3 

Yet  it  would  be  a  great  mistake  to  suppose  that  popular  ratifica- 
tion was  not  thought  of  at  this  time.  Indications  are  ample  that  the 
colonial  lessons  in  popular  law-making  awaited  only  a  favorable 
opportunity  for  application.  Let  us  notice  as  we  proceed  how  these 
indications,  like  popular  legislation  itself,  are  mainly  confined  or 
traceable  to  those  localities  where  the  influence  of  the  Calvinist  and 
his  descendants  was  paramount. 

B.     New  Hampshire 

While  the  distinction  has  been  claimed  for  other  colonies,  New 
Hampshire  seems  to  have  been  the  pioneer  in  adopting  a  constitu- 

1  "It  is  clear  enough  now  that  the  normal  procedure  would  have  been  for  the  As- 
sembly in  each  colony  to  provide  for  the  election  of  delegates  to  a  constitutional  con- 
vention which  should  formulate  a  plan  of  government,  and  submit  it  to  the  qualified 
electors.     If  approved  by  them  it  should  become  the  supreme  law  of  the  state.     This  pro- 
cedure, however,  was  almost  out  of  the  question  in  most  of  the  colonies."    Thorpe,  I,  1 2 1 . 

2  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  sees.  489,  490. 
*  Morey,  "The  First  State  Constitutions,"    Annals  of  the  American  Academy  of 

Political  and  Social  Science,  IV,  218,  219. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  139 

tion.1  The  provincial  congress,  the  body  which  directed  the  revolu- 
tion in  that  colony,  —  assembled  at  Exeter  on  May  17,  I775,2  having 
been  chosen  for  six  months  only.  Before  the  expiration  of  its  term, 
application  was  made  to  the  Continental  Congress  for  advice  as  to  a 
form  of  government,3  with  the  result  already  stated.4 

Pursuant  to  the  recommendations  thus  obtained,  the  New  Hamp- 
shire body  provided  for  the  calling  of  a  fifth  provincial  congress,  under 
a  new  plan  for  representation  of  the  towns,  and  empowered  it  "to 
Prosecute  such  measures  as  they  may  deem  Necessary  for  the  Pub- 
lick  good  During  the  Term  of  one  year."  5  Convening  on  December 
21,  1775,°  this  congress  voted  two  weeks  later  to  "take  up  civil  gov- 
ernment for  this  colony,"  7  and  thereupon  adopted  an  instrument 
reciting  the  grievances  against  Great  Britain  and  providing  for  a 
legislative  government  with  a  popular  branch  and  a  council  selected 
by  it.8 

1  "It  is  among  the  many  good  things  of  which  New  Hampshire  may  be  proud, 
that  she  was  the  first  State  in  the  Union  to  establish  a  written  constitution.     This 
honor,  has,  indeed,  been  claimed  for  another  state.     'Virginia,'  says  Mr.  Jefferson, 
'  was  not  only  the  first  of  the  states,  but,  I  believe  I  may  say,  the  first  of  the  nations  of 
the  earth,  which  assembled  its  wise  men  peaceably  together,  to  form  a  fundamental 
constitution,  to  commit  it  to  writing,  and  place  it  among  its  archives,  where  every  one 
should  be  free  to  appeal  to  its  text. '     A  reference  to  dates  shows,  at  once,  the  incorrect- 
ness of  this  statement.     The  first  Virginia  constitution  bears  the  date  of  June  twelfth, 
1776;    that  of  New  Hampshire  went  into  operation  more  than  five  months  earlier, 
January  fifth,  1776.     The  constitutions  of  the  other  states  were  all  formed  at  a  later 
period,  so  that  New  Hampshire  has  the  merit  of  having  first  set  the  example  to  the 
other  states  of  a  written  constitution."  — Plumer,  "The  Constitution  of  New  Hamp- 
shire," The  Historical  Magazine  (Morrisania,  N.Y.,  1868),  N.  S.  IV,  172,  173. 

The  New  Hampshire  constitution  "is  claimed  and  understood  to  be  the  first  that 
was  adopted  in  any  State  or  Colony  in  the  Union."  New  Hampshire  State  Papers, 
edited  by  Bouton  (Concord,  1874),  VIII,  preface.  See  also  New  Hampshire  Town 
Papers  (Concord,  1875),  IX,  Appendix,  833,  by  the  same  editor.  But  see  post,  142. 
Still  another  claims  the  distinction.  "South  Carolina  was  the  first  of  the  United 
Colonies  that  formed  an  independent  constitution." — Ramsey,  "History  of  South 
Carolina"  (Charleston,  1809),  I,  267.  But  the  South  Carolina  provincial  congress 
appears  not  to  have  completed  and  proclaimed  its  constitution  until  March  26,  1776. 
Vide  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  sec.  133. 

2  See  its  Journal,  New  Hampshire  Provincial  Papers  (edited  by  Bouton,  Nashua, 
1873),  VII,  468  et  seq. 

3  Belknap,  "History  of  New  Hampshire"  (Boston,  1791),  II,  397.     Cf.  ante,  137. 

4  Ante,  137.     Cf.  State  Papers  (edited  by  Bouton,  Concord,  1874),  VIII,  i,  2. 
New  Hampshire  Provincial  Papers  (Nashua,  1873),  VII,  659  et  seq. 

6  The  Historical  Magazine  (Morrisania,  N.Y.),  N.  S.  IV,  145. 

7  New  Hampshire  State  Papers  (Concord,  1874),  VIII,  2;  XIV,  172. 

8  Id.  VIII,  2,  4,  where  this  constitution  is  printed  in  full ;  also  The  Historical  Maga- 
zine (Morrisania,  N.Y.,  1868),  XIV,  145  et  seq. 


140  THE   PEOPLE'S    LAW 

There  seems  to  be  no  record  of  any  proposal  before  the  congress 
to  submit  this  instrument  to  the  electors  or  of  any  discussion  as  to 
the  right  or  expediency  of  so  doing.  We  have  seen  that  New  Hamp- 
shire's experience  in  popular  legislation  was  less  extensive  than  that 
which  prepared  her  sister  colonies  of  southern  New  England  for  the 
direct  participation  of  the  people  in  constitution-making.  Moreover, 
there  had  been  no  instance  yet  of  a  popularly  adopted  state  constitu- 
tion in  America.  Massachusetts  had  not  initiated  the  movement 
which  was  to  prove  so  fruitful  of  results  and  so  instructive  to  the 
other  colonies,  and  no  example  could  be  found  elsewhere. 

But  perhaps  the  strongest  reason  why  this  instrument  was  not 
referred  to  the  people  was  the  fact  that  it  was  believed  to  be  only 
temporary  in  character.  It  purported  to  be  merely  "A  FORM  OF 
GOVERNMENT  to  Continue  During  the  Present  Unhappy  and  Un- 
natural Contest  with  Great  Britain,"  1  and  its  framers  declare  that 
they  "Shall  Rejoice  if  Such  a  reconciliation  between  us  and  our 
Parent  State  can  be  Effected  as  shall  be  Approved  by  the  CON- 
TINENTAL CONGRESS."  2 

Indeed,  no  less  than  twelve  delegates  protested  against  its  adop- 
tion at  all,  "because  it  appears  to  us  too  much  like  setting  up  an  in- 
dependency of  the  mother  country,"  and  "because  the  colonies  of 
New  York  and  Virginia,  which  are  much  larger  and  more  opulent, 
and,  we  presume,  much  wiser,  have  not  attempted  anything  of  this 
kind  ;  nor,  as  we  can  learn,  ever  desired  it."  3  Since,  then,  this  instru- 
ment was  expected  to  remain  in  force  for  perhaps  but  a  few  months, 
it  may  well  be  understood  how  it  was  not  deemed  of  sufficient  im- 
portance to  require  a  submission  to  the  electorate.  Ordinary  statutes 
might  seem  to  the  delegates  to  present  stronger  claims  for  such  action. 
When  the  men  of  New  Hampshire  become  convinced  that  a  perma- 
nent new  constitution  is  necessary,  we  shall  find  them  adopting  a 
different  course.  This  pioneer  of  American  constitutions  went  into 
force  without  the  direct  assent  of  the  people  because  the  times  were 
not  ripe  at  the  beginning  of  the  year  1776  for  applying  the  plan  of 
popular  ratification  in  New  Hampshire.  But  the  conditions  never- 
theless existed  which  were  to  insure  its  early  employment. 


New  Hampshire  State  Papers,  VIII,  2. 


2         3- 


3  Quoted  in  Plumer,  "The  Constitution  of   New  Hampshire,"    The  Historical 
Magazine  (Morrisania,  N.Y.,  1868),  XIV  (IV,  new  ser.),  173. 


INSTRUMENTS    OF   THE   REVOLUTIONARY   ERA  141 


C.    South  Carolina 

As  in  New  Hampshire,  so  in  the  next  colony  to  act,  the  first  effort 
at  constitution-making  was  regarded  as  provisional  and  temporary. 
The  provincial  congress,  having  declared  itself  "the  General  As- 
sembly of  South  Carolina,"  proceeded  to  adopt  an  instrument  framed 
on  the  model  of  the  British  constitution  and  to  continue  "till  a  recon- 
ciliation between  Great  Britain  and  the  colonies  should  take  place."  1 
After  the  revolution  was  well  under  way,  however,  and  it  came  to  be 
understood  that  reconciliation  was  not  to  be  expected,  steps  were 
taken  for  a  more  permanent  constitution.  A  new  legislature  was 
chosen  in  the  fall  of  1776  and  there  seems  to  have  been  a  general 
understanding  that  it  was  to  undertake  this  task,  and  its  action  was 
therefore  regarded  as  an  authorization  direct  from  the  people.2 

When  this  body  met  in  the  following  January,  it  furnished  evi- 
dence, —  the  first,  probably,  among  the  organized  colonies  during 
this  entire  period  —  that  the  popular  compact-making  of  colonial 
times  3  had  not  been  altogether  forgotten.  Unlike  the  New  Hamp- 
shire congress  this  South  Carolina  body  did  not  declare  in  force  the 
results  of  its  work,  "  it  submitted  them  for  the  space  of  a  year  to  the 
consideration  of  the  people  at  large."  4  There  was  no  actual  vote 
on  the  instrument,  but 

"from  the  general  approbation  of  the  inhabitants,  the  new  Constitution  received 
all  the  authority  which  could  have  been  conferred  on  the  proceedings  of  a  conven- 
tion expressly  delegated  for  the  express  purpose  of  framing  a  form  of  government." 5 

Doubtless  a  strong  reason  why  a  formal  submission  to  a  popular 
vote  was  not  at  least  proposed  was  that  "the  distinction  between  a 
constitution  and  an  act  of  the  legislature  was  not  at  this  period  so 
well  understood  as  it  has  been  since."  6  As  we  shall  find  was  the 
case  also  in  Virginia,  the  opinion  prevailed  that  a  constitution  was  a 
mere  act  of  the  legislature.  So  strong,  indeed,  was  this  opinion  that 
almost  a  half  century  later  it  received  judicial  sanction  with  reference 

1  Ramsey,  "History  of  South  Carolina"  (Charleston,  1809),  I,  269.     Cf.  II,  135. 

2  Id.  II,  135;  Ramsey,  "History  of  the  Revolution  in  South  Carolina,"  128,  129. 
But  see  Judge  Jameson's  criticism  of  this  view,  "Constitutional  Conventions"  (4th 
Ed.,  Chicago,  1887),  sec.  137. 

3  See  ante,  HI  et  seq. 

4  Ramsey,  "History  of  the  Revolution  in  South  Carolina,"  128,  129. 

6  Id.  •  Ramsey,  "History  of  South  Carolina,  II,  135. 


142  THE  PEOPLE'S  LAW 

to  both  of  the  above  mentioned  instruments  from  the  highest  court 
of  the  state,  which  declared:  — 

"Between  the  declaration  of  our  National  Independence  and  the  adoption 
of  the  federal  constitution,  this  state  was  sovereign  and  uncontrolled.  The 
people,  in  whom  all  power  was  vested,  thought  proper  to  employ  the  legislature 
as  their  agents,  in  the  exercise  of  that  power.  In  the  use  of  this  power,  the  legis- 
lature was  unlimited.  They  were  the  representatives  of  the  people ;  for  all  pur- 
poses whatever  could  be  done  by  the  people,  could  be  done  by  the  legislature. 
Each  succeeding  legislature  possessed  the  same  power,  and  could  not  be  bound 
by  any  act  of  a  preceding  legislature,  for  each  legislature  was  the  people.  What- 
ever, therefore,  one  legislature  could  enact,  a  succeeding  legislature  could  repeal. 
The  form  of  government  adopted  by  the  legislature  of  1776,  was  no  more  than 
any  other  legislative  act,  and  was  subject  to  the  revision  and  repeal  of  a  succeed- 
ing legislature.  The  legislature  of  1778,  did  revise  and  repeal  the  act  of  1776, 
and  adopted  another  form  of  government  which  is  called  the  constitution  of  1778. 
This  constitution  pretends  to  no  control  over  succeeding  legislatures,  although  it 
does  restrain  the  officers  of  government  in  the  exercise  of  the  powers  vested  in 
them  for  the  administration  of  the  laws.  Had  it  attempted  to  restrain  future 
legislatures,  it  would  have  been  inoperative;  as  each  legislature  possessed  all 
the  power  of  the  people,  who  can  undo  whatever  they  may  have  done. "  1 

But  the  fact  that  this  second  South  Carolina  instrument  was  left 
"to  the  consideration  of  the  people"  even  without  a  vote  shows  that 
the  struggles  of  the  Carolina  covenant-makers  and  "associations" 
earlier  in  the  eighteenth  century  had  not  been  altogether  in  vain. 

D.    Virginia 
i.     "The  First  Complete  Constitution11 

The  third  colony  to  take  steps  toward  the  framing  of  a  constitu- 
tion and  the  first  to  accomplish  that  result  in  anything  like  modern 
completeness  was  Virginia. 

"It  has  been  usual  to  concede  to  Virginia,"  says  Judge  Jameson,2  "the  honor 
of  having  framed  the  first  American  Constitution.  If  by  that  be  meant  the  first 
which  was  complete  according  to  later  ideas  of  what  a  Constitution  should  be; 
the  concession  is  just.  The  first  Constitutions  of  New  Hampshire  and  South 
Carolina,  which  were  several  months  earlier  in  date  than  that  of  Virginia,  were 
very  imperfect,  while  the  latter  was  so  skilfully  framed  that  it  was  not  found 
necessary  to  change  it  until  1830,  nearly  three  quarters  of  a  century  after  its 
formation." 

1  Per  Huger,  J.,  in  Thomas  v.  Daniel,  2  McCord  (S.C.),  359*. 

*  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  sec.  138,  note. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  143 

But  the  body  which  framed  this  instrument  was  not,  as  afterward 
in  Massachusetts  and  New  Hampshire,  created  for  that  purpose  in 
response  to  a  demand  of  the  people  expressed  through  the  ballot-box. 
It  was  not  even  charged  with  the  duty  or  expressly  vested  with  the 
power  of  establishing  a  constitution  at  all.1 

"For  more  than  a  year,"  observes  a  recent  historian,2  "local  committees, 
self-constituted,  acting  as  revolutionary  bodies,  and  therefore  under  no  laws  or 
general  system,  had  exercised  what  functions  of  defence,  and  too  often  of  offence, 
were  deemed  necessary  by  a  majority  of  their  members,  governed  only  by  the 
rules  of  self-preservation.  From  these  local  committees  grew  the  Colonial  Con- 
vention, convening  without  definite  aim  or  purpose,  and  containing  within  itself 
a  difference  of  opinion  that  promised  a  protracted  contest  on  every  question  that 
involved  a  change  in  the  social  order  of  the  colony." 

How  this  body  came  into  existence  is  also  described  by  Jefferson. 
The  ancient  House  of  Burgesses  had  been  dissolved  by  the  royal 
governor,  Lord  Dunmore,  in  I775-3 

"On  the  discontinuance  of  assemblies,  it  became  necessary  to  substitute 
in  their  place  some  other  body,  competent  to  the  ordinary  business  of  government, 
and  to  the  calling  forth  the  powers  of  the  State  for  the  maintenance  of  our  op- 
position to  Great  Britain.  Conventions  were  therefore  introduced,  consisting  of 
two  delegates  from  each  county,  meeting  together  and  forming  one  house,  on  the 
plan  of  the  former  house  of  burgesses,  to  whose  places  they  succeeded.  These 
were  at  first  chosen  anew  for  every  particular  session.  But  in  March,  1775,  they 
recommend  to  the  people  to  choose  a  convention  which  should  continue  in  office 
a  year.  This  was  done,  accordingly,  in  April,  1775,  and  in  the  July  following 
that  convention  passed  an  ordinance  for  the  election  of  delegates  in  the  month  of 
April  annually.  It  is  well  known  that  in  July,  1775,  a  separation  from  Great 
Britain  and  establishment  of  republican  government  had  never  yet  entered  into 
any  person's  mind.  A  convention,  therefore,  chosen  under  that  ordinance,  cannot 
be  said  to  have  been  chosen  for  the  purposes  which  certainly  did  not  exist  in  the 
minds  of  those  who  passed  it.  ...  So  that  the  electors  of  April,  1776,  no  more 
than  the  legislators  of  July,  1775,  not  thinking  of  independence  and  a  permanent 
republic,  could  not  mean  to  vest  in  these  delegates  powers  of  establishing  them, 
or  any  authorities  other  than  those  of  the  ordinary  legislature. "  4 

We  shall  see  how  different  this  was  from  the  painstaking  effort 
subsequently  made  in  Massachusetts  to  ascertain  and  carry  out  the 

1  "Writings  of  Thomas  Jefferson"  (Washington's  Ed.,  New  York,  1854),  VIII. 
363- 

2  Worthington  C.  Ford  in  The  Nation,  LI,  107. 

3  See  remarks  of  Judge  Tucker  in  Kamper  v.  Hawkins,  i  Virginia  Cases,  70. 

4  "Writings  of  Thomas  Jefferson"  (Washington's  Ed.),  VIII,  363,  364. 


144  THE  PEOPLE'S  LAW 

popular  will.  The  latter  was  in  accord  with  the  democratic  ideas 
of  Jefferson  and  he  urged  that  without  this  authorization  from  the 
people  the  convention  could  not  proceed  to  adopt  a  form  of  govern- 
ment. Says  Edmund  Randolph  i1  — 

"  Mr.  Jefferson,  who  was  in  Congress,  urged  a  youthful  friend  in  the  convention 
to  oppose  a  permanent  constitution  until  the  people  should  elect  deputies  for  the 
special  purpose.  He  denied  the  power  of  the  body  elected  (as  he  conceived  them 
to  be  agents  for  the  management  of  the  war)  to  exceed  some  temporary  regi- 
men." 

Nevertheless  the  body  thus  chosen  was  distinguished  for  the  high 
character  of  its  membership.  "No  other  convention,"  says  Thorpe, 
"assembled  to  make  a  State  constitution  has  enrolled  so  many  emi- 
nent men."  2  The  delegates  assembled  at  Williamsburg  on  May  6, 
1776,  having  been  elected  in  the  preceding  month.3 

On  June  12,  they  proceeded  to  adopt  the  Declaration  of  Rights, 
which  had  been  drafted  by  George  Mason  and  which  is  noted  for  its 
clear  expression  of  advanced  political  doctrines.4  By  June  29 
they  had  agreed  upon  a  "constitution  or  form  of  government," 
which  seems  to  have  been  considered  apart  from  the  Declaration 
of  Rights.5  This  instrument,  as  has  been  observed,  was  the  first 
complete  American  constitution.  It  is  distinguished  also  as  con- 
taining the  first  enactment  of  the  doctrine  of  the  separation  of 
governmental  powers,6  —  a  feature  made  pertinent  in  Virginia  by 
the  fact  that  under  the  colonial  regime  judges  had  seats  in  the 
legislature.  Both  the  Declaration  and  the  form  of  government  were 
agreed  upon  unanimously  by  the  delegates,7  and  yet  among  all  that 
brilliant  array  there  seems  to  have  been  only  one  who  thought  it 
necessary  or  desirable  that  the  results  of  the  convention's  labors 
be  submitted  to  the  people. 

1  Ms.  "History  of  Virginia,"  63,  quoted  in  writings  of  Thomas  Jefferson  (Ford's 
Ed.,  New  York,  1893),  II,  9. 

2  "Constitutional  History  of  the  American  People"  (New  York,  1898),  I,  117, 
note. 

3  See  "Proceedings  of  the  Convention"  (Richmond,  1816,  reprint).     Cf.  Grigsby, 
"The  Virginia  Convention  of  1776"  (Richmond,  1855). 

4  See  text  in  Hening's  "Statutes  at  Large"  (Richmond,  1821),  IX,  109. 
•Id.  112. 

8  Bondy,  "The  Separation  of  Powers"  (New  York,  1896),  Columbia  University 
Studies,  V,  No.  2,  19,  note  4. 

7  See  Hening's  "Statutes  at  Large,"  IX,  109,  112. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  145 

2.     Jefferson's  Plan  for  Popular  Ratification 

Thomas  Jefferson,  though  elected  to  this  convention,1  was  also  a 
member  of  the  Continental  Congress,  and  was  absent  in  attendance 
upon  the  latter  during  the  deliberations  of  the  Virginia  body.  But 
the  great  American  exponent  of  the  democratic  theory  in  the  eigh- 
teenth century  did  not  allow  his  absence  to  preclude  him  from  pre- 
senting his  ideas  to  the  convention.  Writing  subsequently  of  this 
occasion  he  says:  — 

"  I  was  then  at  Philadelphia  with  Congress ;  and  knowing  that  the  Convention 
of  Virginia  was  engaged  in  forming  a  plan  of  government,  I  turned  my  mind  to 
the  same  subject,  and  drew  a  sketch  or  outline  of  a  Constitution,  with  a  preamble, 
which  I  sent  to  Mr.  Pendleton,  president  of  the  convention,  on  the  mere  possi- 
bility that  it  might  suggest  something  worth  incorporation  into  that  before  the 
Convention.  He  informed  me  afterwards  by  letter,  that  he  received  it  on  the  day 
on  which  the  Committee  of  the  Whole  had  reported  to  the  House  the  plan  they  had 
agreed  to;  that  that  had  been  so  long  in  hand,  so  disputed  inch  by  inch,  and  the 
subject  of  so  much  altercation  and  debate,  that  they  were  worried  with  the  con- 
tentions it  had  produced,  and  could  not,  from  mere  lassitude,  have  been  induced 
to  open  the  instrument  again;  but  that,  being  pleased  with  the  Preamble  to 
mine,  they  adopted  it  in  the  House,  by  way  of  amendment  to  the  Report  of  the 
Committee;  and  thus  my  Preamble  became  tacked  to  the  work  of  George 
Mason." 2 

Jefferson  had  all  along  denied  the  power  of  this  Virginia  body  to 
enact  a  permanent  constitution.  Then  and  afterwards  he  maintained 
that  the  instrument  thus  framed  was  of  no  higher  force  than  an  ordi- 
nary statute  and  hence  repealable  by  the  legislature.3  Accordingly, 
he  speaks  of  his  " outline"  or  draft  of  a  constitution  as  a  "bill,"  but 
he  nevertheless  intends  that  it  shall  be  submitted  to  the  electors;  for 
the  instrument  closes  with  the  significant  provision : 4  — 

"  It  is  proposed  that  the  above  bill,  after  correction  by  the  Convention,  shall  be 
referred  by  them  to  the  people  to  be  assembled  in  their  respective  counties;  and 
that  the  suffrages  of  two-thirds  of  the  counties  shall  be  requisite  to  establish  it." 

Nor  does  his  insistence  of  the  direct  participation  plan  end  here. 
His  proposed  constitution  also  provides : 5  — 

Thorpe,  "Constitutional  History"  (New  York,  1898),  I,  117,  note. 
"Writings  of  Jefferson"  (Ford's  Ed.,  New  York,  1893),  II,  8,  9,  notes.     Both 
the  original  draft  and  the  first  copy  are  set  out  in  full  in  the  volume  cited. 
Id.  (Washington's  Ed,  New  York,  1854),  VIII,  363,  3^4- 
Id.  (Ford's  Ed,  New  York,  1893),  II,  29,  30. 
Id.  29. 

L 


146  THE  PEOPLE'S    LAW 

"  None  of  these  fundamental  laws  and  principles  of  government  shall  be  re- 
pealed or  altered,  but  by  the  personal  consent  of  the  people  on  summons  to  meet 
in  their  respective  counties  on  one  and  the  same  day  by  an  act  of  the  Legislature 
to  be  passed  for  every  special  occasion ;  and  if  in  such  county  meetings  the  people 
of  two-thirds  of  the  counties  shall  give  their  suffrage  for  any  particular  alteration 
or  repeal  referred  to  them  by  the  said  act,  the  same  shall  be  accordingly  repealed 
or  altered,  and  such  repeal  or  alteration  shall  take  its  place  among  these  funda- 
mentals and  stand  on  the  same  footing  with  them,  in  lieu  of  the  article  repealed 
or  altered." 

Thus  the  plan  of  popular  ratification,  both  of  the  original  instru- 
ment and  of  its  amendments,  was  brought  before  the  convention;  but 
in  vain.  It  seems  not  to  have  been  even  discussed.  Indeed,  after 
it  was  received,  there  was  little  opportunity  for  discussion.  And  if 
it  had  been  debated,  there  is  small  likelihood  that  the  result  would 
have  been  different.  The  experience  of  Virginia  had  not  been  such 
as  to  render  it  favorable  soil  for  such  an  experiment.  The  delegates 
who  framed  this  instrument  represented  a  tidewater  people  of  English 
stock.  The  Scotch-Irish,  who  had  begun  to  settle  in  the  western 
mountains,  had  little  or  no  voice  in  its  proceedings,  though  they  ap- 
pear to  have  sent  a  communication  to  it.1 

Jefferson,  as  we  have  seen,  not  only  opposed  the  enactment  of 
the  constitution,  but  insisted  that  it  was  never  anything  more  than 
an  ordinary  enactment  of  the  legislature  and  therefore  subject  to 
repeal.2  These  views  were  subjected  to  a  judicial  test  a  few  years 
later  (1793)  in  a  case  which  came  before  the  General  (Supreme) 
Court  of  Virginia.3  The  General  Assembly  had  passed  an  act  con- 
ferring upon  the  district  courts  the  powers  of  a  court  of  chancery  in 
reference  to  granting  injunctions.  This  was  in  conflict  with  the  pro- 
visions of  the  constitution,  and  the  question  was  thus  squarely  pre- 
sented as  to  whether  the  latter  instrument  was  an  ordinary  statute  or 
was  a  real  constitution.  If  the  former,  the  act  in  question  would 
stand,  as  it  would  effect  a  repeal  of  the  earlier  one;  if  the  latter,  the 
statute  was  invalid,  as  a  constitution  could  not  be  changed  by  a  mere 
act  of  the  legislature.  In  rendering  their  decision  the  judges  repudi- 
ated the  views  of  Jefferson  and  were  unanimously  of  the  opinion  that 
the  instrument  proclaimed  by  the  convention  of  1776  was  a  real  and 

1  See    Turner,  "Western    State-Making    in   the  Revolutionary  Era,"  American 
Historical  Review,  I,  76;   ante,  130. 

2  "Writings  of  Jefferson"  (Washington's  Ed.,  New  York,  1854),  VIII,  363-367. 

3  Kamper  v.  Hawkins,  i  Virginia  Cases,  20. 


INSTRUMENTS   OF   THE    REVOLUTIONARY   ERA  147 

valid  constitution.  Some  of  their  opinions  bear  directly  on  the  sub- 
ject of  this  treatise  and  are  of  great  interest  as  the  earliest  expressions 
of  judicial  thought  on  the  now  burning  question  whether  the  electors 
have  a  right  to  pass  on  a  newly  framed  constitution.  Thus  Mr. 
Justice  Nelson  says :  *  — 

"It  is  confessedly  the  assent  of  the  people  which  gives  validity  to  a  constitution. 

May  not  the  people  then,  by  a  subsequent  acquiescence  and  assent,  give  a  Con- 
stitution, under  which  they  have  acted  for  seventeen  years,  as  much  validity,  at 
least  so  long  as  they  acquiesce  in  it,  as  if  it  had  been  previously  expressly  author- 
ized? 

The  people  have  received  this  as  a  Constitution.  The  magistrates  and  offi- 
cers, down  to  a  constable  (for  even  the  mode  of  his  appointment  is  directed) 
have  been  appointed  under  it. 

The  people  have  felt  its  operation  and  acquiesced. 

Who  then  can  change  it?     I  answer,  the  PEOPLE  alone." 

Some  of  this  reads  as  though  the  learned  judge  was  favorable  to 
the  democratic  practice  of  New  England.  But  this  must  be  con- 
strued in  the  light  of  the  fact  that  he  upheld  an  instrument  which 
the  people,  as  a  whole,  neither  initiated  nor  ratified. 

What  the  phrase  " assent  of  the  people"  meant  to  the  Virginians 
of  1793  is  best  revealed  in  the  opinion  in  the  same  case  of  Judge 
Tucker,  who  speaks  2  of  constitutional  conventions  as 

"bodies  neither  authorized  by,  or  known  to,  the  then  constitutional  government; 
bodies,  on  the  contrary,  which  the  constitutional  officers  of  the  then  existing  gov- 
ernment considered  as  illegal,  and  treated  as  such.  Nevertheless,  they  met,  de- 
liberated and  resolved  for  the  common  good.  They  were  the  people  assembled 
by  their  deputies ;  not  a  legal,  or  a  constitutional  assembly  or  part  of  the  government 
as  then  organized.  Hence  they  were  not,  nor  could  be  deemed  the  ordinary 
legislature ;  that  body  being  composed  of  the  governor,  council  and  burgesses, 
who  sat  in  several  distinct  chambers  and  characters;  while  the  other  was  com- 
posed of  a  single  body,  having  neither  the  character  of  governor,  council,  or 
legitimate  representative  among  them ;  they  were,  in  effect,  the  people  themselves, 
assembled  by  their  delegates,  to  whom  the  care  of  the  commonwealth  was  espe- 
cially, as  well  as  unboundedly  confided." 

Here,  then,  we  have  a  clear  statement  of  the  "representation"  theory 
in  constitution-making.  It  is  a  theory  of  which  we  shall  hear  much 
in  the  future,  and  was  for  a  long  time,  and  even  yet  is,  advanced  in 
order  to  check  the  steady  trend  toward  the  method  of  direct  partici- 
pation by  the  people.  The  latter,  which  had  received  quasi-recogm- 

1  Kamper  v.  Hawkins,  i  Virginia  Cases,  28.  2  Id.  69. 


148  THE  PEOPLE'S   LAW 

tion  in  South  Carolina,  and  was  soon  to  be  demanded  by  a  con- 
siderable element  in  North  Carolina,  existed  as  yet,  only  in  the  form 
of  a  proposal  in  Virginia,  —  a  proposal,  it  is  true,  by  one  of  her  most 
eminent  sons,  but  receiving  no  serious  consideration  from  the  distin- 
guished statesmen  who  gathered  at  Williamsburg  to  frame  the  first 
fundamental  code  of  the  state.  Nevertheless  there  is  reason  to 
believe  that  this  proposal  was  not  without  its  influence  on  the  con- 
stitutional development  of  Virginia.  In  the  second  convention  which 
met,  though  more  than  half  a  century  after  the  first,  to  establish  a 
form  of  government  for  the  Old  Dominion,  this  proposed  constitu- 
tion of  Jefferson  was  known  to  the  delegates,1  and  the  instrument 
which  they  finally  evolved  followed  the  ideas  of  the  Sage  of  Monti- 
cello  and  went  to  the  people  for  ratification. 

E.    Pennsylvania 
i.    The  First  Constitution 

As  in  Virginia,  so  in  Pennsylvania,  the  first  constitution  was  the 
immediate  product  of  the  revolutionary  movement.2  The  English 
Quakers  and  a  portion  of  the  Germans,3  who  had  formed  a  coalition, 
and,  until  lately,  controlled  the  assembly,  were  inclined  to  favor 
Great  Britain,  and  the  patriotic  movement  was  largely  in  the  hands 
of  the  Scotch-Irish  element.  These  were  the  men  who  took  naturally 
to  the  forming  of  the  "associations"  which  we  have  already  noticed.4 
At  a  meeting  of  representatives  from  the  Committee  of  Safety  of  the 
various  counties,  held  in  Philadelphia  in  June,  1776,  the  people  were 
asked  to  elect  delegates  to  a  provincial  convention  — 

1  "I  have  seen  the  project  of  the  constitution  which  Mr.  Jfefferson]  offered,  in 
the  Council  Chamber,  in  his  own  handwriting,  tho'  it  cannot  now  be  found,  —  and  I 
have  since  cursed  my  folly  that  I  neglected  to  take  a  copy  of  it."  —  Mr.  Leigh  of  Halifax, 
in  his  speech  on  the  apportionment  of  representatives.     Proceedings  and  Debates  of 
the  Virginia  State  Convention  of  1829-1830  (Richmond,  1830),  160. 

2  See  as  to  the  history  of  this  instrument  an  instructive  article  by  Paul  Leicester 
Ford  on  "The  Adoption  of  the  Pennsylvania  Constitution  of  1776,"  Political  Science 
Quarterly,  X,  426. 

3  This  is  Ford's  view.     But  it  by  no  means  expresses  the  attitude  of  all  the  Germans. 
The  writer's  great-great-grandfather,  who  was  the  son  of  a  German-Swiss  immigrant,  was 
a  member  of  the  Revolutionary  Committee  of  Correspondence  of  Westmoreland  County, 
and  later  a  delegate  to  the  Constitutional  Convention  of  1776.     See  "Pennsylvania 
Archives,"  III,  648  (4th  series);  Egle,  "Pennsylvania  Genealogies,"  498. 

4  Ante,  107  et  seq. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  149 

"for  the  express  purpose  of  forming  a  new  government  for  this  province,  on  the 
authority  of  the  people  only."  l 

In  the  following  July,  delegates  were  elected  and  the  convention 
met  at  Philadelphia  and  entered  upon  the  task  of  framing  a  consti- 
tution. Of  the  instrument  which  they  finally  evolved  it  has  been 
declared :  — 

"No  constitution  yet  framed  had  ever  made  such  great  strides  towards  popular 
government.  .  .  .  Only  by  a  study  of  the  other  constitutions  adopted  at  that 
time  can  the  radical  character  of  these  provisions  be  properly  understood."  2 

The  instrument  did  not  provide  for  submission  to  the  people  and 
that  course  does  not  appear  to  have  been  debated.  Doubtless  the 
chief  reason  for  this,  as  in  some  of  the  other  colonies,  was  fear  of  the 
Loyalists,  for  it  seems  that  the  extremists  in  the  convention  realized 
that  they  were  in  the  minority  throughout  the  province.3  But  that 
the  convention  was  disposed  toward  the  principle  of  that  plan  is 
apparent  from  the  following  clause,4  which  the  constitution  con- 
tained :  — 

"To  the  end  that  laws  before  they  are  enacted  may  be  more  maturely  con- 
sidered and  the  inconvenience  of  hasty  determinations  as  much  as  possible  pre- 
vented, all  bills  of  public  nature  shall  be  printed  for  the  consideration  of  the  people, 
before  they  are  read  in  general  assembly  the  last  time  for  debate  and  amendment ; 
and,  except  on  occasions  of  sudden  necessity,  shall  not  be  passed  into  laws  until 
the  next  session  of  assembly;  and  for  the  more  perfect  satisfaction  of  the  public, 
the  reasons  and  motives  for  making  such  laws  shall  be  fully  and  clearly  expressed 
in  the  preambles." 

This,  as  Ford  observes,5  was  "practically  establishing  a  referen- 
dum." 

The  constitution  was  proclaimed  in  September,  the  delegates 
assuming  "by  virtue  of  the  authority  vested  in  us  by  our  constitu- 
ents" to  "ordain,  declare  and  establish"  6  it.  Notwithstanding  (and 
in  some  quarters,  doubtless,  by  reason  of)  its  ultra-democratic  char- 
acter, extreme  dissatisfaction  with  the  instrument  was  expressed.7 
Many  of  the  delegates  themselves  refused  to  sign  it,8  and  the  con- 

1  " Conventions  of  Pennsylvania,"  38;  Jameson,   "Constitutional   Conventions" 
(4th  Ed.,  Chicago,  1887),  sec.  143. 

2  Ford,  Political  Science  Quarterly,  X,  454.  *  Id.  454,  455. 
4  Poore,  "Charters  and  Constitutions,"  II,  1544;  sec.  15. 

6  Political  Science  Quarterly,  X,  454.  '  Preamble. 

7  Ford,  Political  Science  Quarterly,  X,  455,  456. 

8  Id. ;  Oberholtzer,  "The  Referendum  in  America"  (26.  Ed.,  New  York,  1900),  45. 


150  THE   PEOPLE'S   LAW 

temporary  press  reports  disclose  that  the  popular  disapproval  of  it 
was  strong.1  This  state  of  affairs  appears  to  have  suggested  the 
idea  of  consulting  the  people  themselves  regarding  another  conven- 
tion and  a  new  constitution. 

2.    The  Proposed  Plebiscitum 

In  June,  1777,  the  council  presented  the  following  address:2  — 

"To  the  Hon'ble,  the  Representatives  of  the  Freemen  of  the  Commonwealth 
of  Pennsylvania  in  General  Assembly  met : 

"The  supreme  Executive  Council  of  the  said  Commonwealth  beg  leave  to 
represent:  That  they  are  sorry  to  find  the  present  Constitution  of  this  State  so 
dissatisfactory  to  any  of  the  Well  Affected  Inhabitants  thereof,  and  would  gladly 
concur  in  any  suitable  and  safe  Measure  for  the  removal  of  the  uneasiness ;  That 
they  are  of  opinion  this  might  be  greatly  attained  by  taking  the  sense  of  the  major- 
ity of  the  Electors  throughout  the  Country  on  the  important  Question,  Whether 
a  Convention  be  holden  at  some  proper  time  to  reconsider  the  frame  of  govern- 
ment formed  by  the  late  convention;  that  to  fix  the  exact  mode  of  obtaining  the 
mind  of  the  majority  on  the  subject,  most  properly  belongs  to  their  Representa- 
tives; that  the  council  hope  that  if  some  suitable  mode  of  advising  and  getting 
the  people  at  large  to  declare  themselves,  and  if  this  were  advised  and  published 
at  this  time,  great  ease  and  relief  would  be  thereby  given  to  some  persons  who  are 
dissatisfied  as  aforesaid;  and  that  unanimity  in  the  common  cause,  so  necessary 
at  this  time,  will  be  promoted. 

"By  Order  of  the  Council, 

"Thomas  Wharton,  Jun.  President. 
"Council  Chamber,  Philad'a  June  nth,  1777." 

The  Whig  society,  which  was  in  favor  of  the  existing  constitution, 
petitioned  the  assembly  in  case  any  change  should  be  contemplated, 
to  "take  the  necessary  steps  for  collecting  the  sense  of  the  State  pre- 
vious to  any  such  recommendation."  3  Accordingly,  on  June  12, 
1777,  the  assembly,  which  then  constituted  the  only  branch  of  the 
legislature  in  Pennsylvania,  adopted  a  resolution  to 

"recommend  it  to  the  inhabitants  of  the  Commonwealth  to  give  their  sense  of 
the  present  dispute  respecting  the  calling  of  a  Convention. "  4 

A  committee  of  the  assembly  appointed  to  recommend  a  method 
of  submitting  the  proposition,  reported  a  plan  which  was  adopted 
for  the  election  by  the  people  in  their  townships  and  other  local  units 
of  commissioners  whose  functions  were  prescribed  as  follows :  — 

1  Pennsylvania  Packet,  February  26,  1779. 

2  "Colonial  Records  of  Pennsylvania,"  XI,  220. 

3  Oberholtzer,  "The  Referendum"  (2d  Ed.,  New  York,  1900),  50.  4  Id. 


INSTRUMENTS    OF   THE   REVOLUTIONARY   ERA  151 

"To  go  to  the  house  or  place  of  residence  of  each  and  every  freeman  entitled 
to  vote  for  members  of  General  Assembly  within  their  respective  townships, 
boroughs,  wards  or  districts,  or  to  take  some  other  opportunity  of  meeting 
with  them.  The  said  commissioner  shall  ask  each  and  every  of  the  said  free- 
men whether  he  desires  that  a  convention  be  now  called,  and  the  freemen 
shall  give  in  writing  on  a  scroll  or  piece  of  paper,  his  vote  or  answer,  which 
he  shall  put  into  a  box  provided  for  that  purpose,  which  he  shall  keep  shut  and 
in  his  own  possession,  and  return  the  same  on  or  before  the  tenth  day  of  No- 
vember to  the  sheriff  of  the  city  or  county  to  which  he  belongs,  or  in  case  of 
the  death,  sickness  or  absence  of  the  sheriff,  to  the  coroner,  who,  with  the  as- 
sistance of  the  said  commissioner,  shall  examine  the  said  box  or  bag,  and  cast 
up  the  number  of  votes  therein  contained  on  each  side  of  the  question,  and  the 
sheriff  or  coroner  shall  deliver  to  such  commissioner  a  certificate  of  the  said 
numbers,  and  also  return  a  true  account  thereof,  under  the  hands  and  seals  of  the 
said  sheriff  or  coroner,  and  of  the  said  commissioner,  to  the  next  General  Assembly 
at  their  first  sitting."  1 

The  British  invasion  suspended,  for  more  than  a  year,  further 
attempts  to  carry  out  this  plan;  but  these  were  resumed  after  the 
evacuation,  and  on  November  28,  1778,  the  assembly  adopted  the 
following  resolution:  — 

"That  the  people  throughout  this  State  qualified  to  vote  for  members  of 
Assembly,  do  meet  at  the  usual  places  of  election  since  the  late  happy  revolution, 
on  the  25th  day  of  March  next,  and  choose  judges  and  inspectors  as  by  law 
directed  in  case  of  representatives.  And  the  said  judges  and  inspectors  being  so 
chosen  and  sworn  as  at  the  election  of  representatives,  shall  provide  two  boxes 
for  the  city  and  each  district  of  every  county;  and  on  the  first  Tuesday  in  April 
next  they  shall  receive  the  votes  of  the  freemen  qualified  at  the  time  of  said  elec- 
tion by  law,  to  vote  as  aforesaid,  making  at  the  same  time  a  list  of  the  voters' 
names,  and  put  into  one  box  all  the  votes  for  and  against  a  convention,  the  voters 
in  favor  of  a  convention  writing  on  their  tickets,  'For  a  Convention'  and  those 
against  it  'Against  a  Convention,'  and  in  the  other  box  they  shall  put  the  votes 
for  the  members  of  such  convention  as  that,  if  the  majority  of  votes  should  be 
in  favor  of  a  convention,  the  minority  may  not  be  precluded  from  a  choice  in  the 
persons  who  are  to  compose  it,  or  the  people  put  to  the  inconvenience  of  a  second 
meeting."  2 

These  boxes,  after  the  meeting  had  adjourned,  were  sealed  and 
delivered  by  the  election  officers  at  the  court  houses  of  the  respective 
counties  to  the  sheriffs  who  would  then  take  them  up  to  the  Assembly 
where  the  boxes  would  be  opened  and  the  ballots  counted.8 

journals  of  the  Assembly  of  Pennsylvania,  145. 

2  Id.  246,  247. 

3  Oberholtzer,  "The  Referendum  in  America"  (2d  Ed.,  New  York,  1900),  52, 
note  12. 


152  THE  PEOPLE'S   LAW 

"If  a  majority  of  votes  shall  appear  to  be  against  a  convention,  then  no  further 
proceedings  shall  be  had,  but  if  a  majority  of  votes  shall  be  for  a  convention,  the 
Assembly  shall  then  proceed  to  open  the  boxes  containing  the  names  of  the  mem- 
bers for  the  city  and  county,  and  shall  declare  the  six  highest  in  number  from 
each  city  and  county  to  be  the  members  to  represent  the  said  city  and  county  in 
convention."  1 

Meanwhile,  however,  the  opponents  of  the  new  constitution  had 
been  at  work  with  good  effect.  Such  formidable  remonstrances  were 
presented  to  the  assembly  that  before  the  question  could  be  voted  on 
that  body  adopted  a  resolution  rescinding  the  former  one,2  and  the 
first  movement  for  a  popularly  initiated  constitution  in  Pennsylvania 
came  to  an  end. 

F.    North  Carolina 

On  August  9,  1776,  the  Council  of  Safety,  meeting  at  Halifax, 
North  Carolina,  and  which  was  the  guiding  body  of  the  revolution 
in  that  state,  resolved :  — • 

"That  it  be  recommended  to  the  good  people  of  this  now  Independent  State 
of  North  Carolina  to  pay  the  greatest  attention  to  the  Election  to  be  held  on  the 
fifteenth  day  of  October  next,  of  delegates  to  represent  them  in  Congress,  and  to 
have  particularly  in  view  this  important  Consideration :  That  it  will  be  the  Busi- 
ness of  the  Delegates  then  Chosen  not  only  to  make  Laws  for  the  good  Govern- 
ment of,  but  also  to  form  a  Constitution  for,  this  State ;  that  this  last  as  it  is  the 
Corner  Stone  of  all  Law,  so  it  ought  to  be  fixed  and  Permanent,  and  that  accord- 
ing as  it  is  well  or  ill  Ordered  it  must  tend  in  the  first  degree  to  promote  the  happi- 
ness or  Misery  of  the  State."  3 

There  was  thus  in  North  Carolina,  more  even  than  in  its  neigh- 
bor of  the  south,  a  gwaw-submission  of  the  question  whether  a  con- 
stitution should  be  adopted,  and  if  so  what  would  be  its  character  and 
provisions.  For  it  was  placed  within  the  power  of  the  voters  to 
determine  both  of  these  questions  by  instructing  their  representatives. 
Events  proved  that  in  some  localities,  at  least,  the  people  were  not 
slow  to  exercise  this  power,  and  it  is  only  what  might  have  been 
expected  that  among  these  were  the  counties  of  Mecklenburg  and 
Orange  where  the  Scotch-Irish  had  settled  in  large  numbers,  where 
the  Regulators'  movement  had  its  origin  and  the  covenants  had 
flourished  and  whence,  yet  more  recently,  had  emanated  the  famous 

1  Journal  of  the  Assembly  of  Pennsylvania,  246,  247. 

2  Id.  323,  324. 

"Colonial  Records  of  North  Carolina"  (Raleigh,  1890),  X,  996. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  153 

resolves  of  1775.     In  the  first-named  county  the  record  opens  as 
follows :  — 

"At  a  general  Conference  of  the  inhabitants  of  Mecklenburg  assembled 
at  the  Court-house  on  the  first  of  November,  1776,  for  the  express  purpose  of 
drawing  up  instructions  for  the  present  Representatives  in  Congress,  the  following 
were  agreed  to  by  the  assent  of  the  people  present  and  ordered  to  be  signed  by 
John  M.  Alexander,  Chairman  chosen  to  preside  for  the  day  in  said  Conference." l 

Following  this  is  a  series  of  instructions  elaborate  in  detail  and 
explicit  in  tone,  relating  not  alone  to  the  constitution  about  to  be 
framed,  but  also  to  general  legislation  thereafter  to  be  enacted.2 
The  representatives  are  instructed  that  the  government  they  are  to 
establish  must  be  a  simple  democracy  or  as  near  it  as  possible,3  and 
certain  time-honored  political  maxims  are  recited  for  incorporation 
in  the  Bill  of  Rights.4  In  places  the  strong  religious  bias  of  the  con- 
stituents crops  out,  as  where  they  direct  that  no  Romanist  or  un- 
believer shall  be  eligible  to  office.5  But  the  passage  most  significant 
in  this  connection  is  the  following :  — 

"You  shall  endeavor  that  the  form  of  Government  when  made  out  and  agreed 
to  by  the  Congress  shall  be  transmitted  to  the  several  counties  of  this  State  to  be 
considered  by  the  people  at  large  for  their  approbation  and  consent  if  they  should 
choose  to  give  it  to  the  end  that  it  may  derive  its  force  from  the  principal  supreme 
power. "  6 

The  same  idea  underlies  the  thirteenth  section  where  certain 
legislation  is  authorized  "after  the  form  of  government  should  be 
agreed  to  by  the  people."  7  The  principle  of  popular  ratification  is 
employed  in  the  meeting  of  the  constituents  themselves,  for  the  in- 
structions, it  appears,  were  drawn  up  by  one  Colonel  Avery  and 
John  M.  Alexander  and  three  of  them  "were  rejected  by  the  people." 8 
This  John  M.  Alexander,  who  was  the  scion  of  a  Scotch-Irish  family 
of  Maryland,9  had  been  prominent  in  the  Mecklenburg  convention, 
and  he  and  his  fellow  constituents  were  but  making  concrete  applica- 
tion of  hereditary  political  ideas.  Had  the  whole  state  been  settled 
by  men  of  their  race,  a  submission  to  the  people  would  doubtless 
have  followed  as  surely  in  North  Carolina  as  afterward  in  Massa- 
chusetts and  New  Hampshire. 

1  "  Colonial  Records  of  North  Carolina,"  X,  870  a. 

2  Id.  870  0-870 /.  •  Id.  sec.  22. 

3  Id.  sec.  2.  '  Id.  sec.  13. 

4  Id.  sec.  5.  s  id   sec.  870  a,  note. 

6  Id.  sec.  19.  •  Hanna,  "The  Scotch-Irish,"  II,  68. 


154  THE  PEOPLE'S   LAW 

In  Orange  County  the  instructions  are  even  more  explicit,  begin- 
ning as  follows:  — 

"We,  the  people  of  the  County  of  Orange,  who  have  chosen  you  to  represent 
us  in  the  next  Congress  of  Representatives  delegated  by  the  people  of  this  State 
require  you  to  take  notice  that  the  following  are  our  instructions  to  you  which 
you  are  required  to  follow  in  every  particular  with  the  strictest  regard. "  l 

After  setting  forth  the  usual  maxims  which  are  to  be  incorporated 
in  the  new  instrument  they  proceed  as  follows :  — 

"Secondly.  We  require  that  the  civil  and  religious  constitution,  which  we 
apprehend  to  contain  the  rules  whereby  the  inferior  derived  power  is  to  be  exer- 
cised, be  framed  and  prepared  by  the  delegates  and  be  sent  to  every  County  to 
be  laid  before  the  people  for  their  assent  if  the  people  shall  think  proper  to  give 
it,  to  the  end  that  it  may  derive  its  authority  from  the  principal  supreme  power 
and  be  afterward  alterable  by  that  alone  agreeable  to  the  fifth  maxim  before  set 
down."2 

Such  were  the  ideas  of  these  North  Carolina  colonists  in  the 
second  year  of  the  struggle  for  independence.  The  second  re- 
corded demand  for  the  popular  ratification  of  a  state  constitution 
came  from  the  South.  Does  not  this  dispose  of  the  claim  that  it 
was  exclusively  a  New  England  notion? 

The  Congress  to  which  these  representatives  had  been  elected 
met  at  Halifax  on  November  12  following.3  It  was  a  legislature 
more  than  a  convention  and  its  time  seems  to  have  been  occupied 
largely  in  general  law-making.  The  instrument  which  it  framed 
embodied  the  Mecklenburg  idea  of  confining  office-holders  to  believers 
and  Protestants,4  but  the  convention  failed  to  observe  the  instructions 
to  send  its  work  back  to  the  people.  Doubtless  among  the  reasons 
for  this  were  the  strength  of  the  Tory  party  and  fear  of  the  invader. 
But  it  is  apparent  that  the  greatest  obstacle  was  the  lack  of  more 
"  Puritans  of  the  South."  That  those  who  were  there  remained  true 
to  the  traditions  is  evidenced  by  these  instructions  from  Mecklen- 
burg and  Orange  counties,  and  that  their  ideas  afterward  leavened 
the  whole  body  politic  is  again  evidenced  by  the  fact  that  when  the 
next  constitutional  change  occurred  in  North  Carolina,  the  amend- 
ments to  the  fundamental  Code  were  submitted  to  the  people? 

1  "Colonial  Records  of  North  Carolina"  (Raleigh,  1890),  X,  870 /. 

2  Id.  870  g. 

3  See  its  Journal,  reprinted  Id.  913-1003. 

4  Id.  ion;  Constitution,  sec.  XXX. 

5  Post,  Chap.  XIV. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  155 

G.    Georgia 

Another  state  whose  people  acted  upon  the  advice  of  the  Con- 
tinental Congress  was  Georgia.  On  October  i,  1776,  a  convention 
assembled  at  Savannah  which  devoted  itself  to  framing  an  instru- 
ment which  was  completed  and  agreed  to  by  the  delegates  on  Feb- 
ruary 5,  of  the  year  following.1  It  was  not  submitted  to  the  people 
but  it  contained  several  features  which  were  quite  advanced  for  that 
day.  It  provided  expressly  for  religious  liberty  and  the  separation 
of  church  and  state.2  It  required  the  establishment  and  main- 
tenance of  free  public  schools.3  But  the  provision  which  most  in- 
terests us  here  was  the  following :  — 

"No  alteration  shall  be  made  in  this  constitution  without  petitions  from  a 
majority  of  the  counties,  and  the  petitions  from  each  county  to  be  signed  by  a 
majority  of  voters  in  each  county  within  this  State ;  at  which  time  the  assembly 
shall  order  a  convention  to  be  called  for  that  purpose,  specifying  the  alterations 
to  be  made,  according  to  the  petitions  preferred  to  the  assembly  by  the  majority 
of  the  counties  as  aforesaid. "  4 

Here  was  a  provision,  not  only  for  popular  amendment  but  for 
the  initiative,  —  the  first  appearance  of  that  system  in  any  written 
constitution  and  its  first  appearance  anywhere  since  the  colonial  era 
in  New  England. 

In  the  other  states  which  established  constitutions  during  the 
year  1776,  there  seems  to  have  been  no  movement  toward  popular 
ratification.  In  Maryland,  as  we  shall  see,5  something  of  an  approach 
to  it  was  made  in  considering  the  federal  constitution  a  dozen  years 
later.  But  in  New  Jersey  6  and  Delaware  7  there  was  no  such  ten- 
dency, doubtless  for  the  same  reason — that  there  had  been  no  colonial 
experience  in  popular  legislation.  Those  elements  of  the  population 
which  had  made  such  an  experience  possible  elsewhere  were  lacking 
in  the  states  just  named. 

1  Jameson,  "Constitutional  Conventions,"  sec.  147. 

2  Art.  LVI ;  Poore,  "  Charters  and  Constitutions,"  I,  383. 

3  Art.  LIV,  Id.  4  Art.  LXIII,  Id.  6  Post,  Chap.  XIV. 
8  See  the  Journal  of  its  Convention  (Trenton,  1831). 

7  There  seems  to  have  been  a  close  connection  between  the  conventions  of  Dela- 
ware, Maryland  and  Pennsylvania.  The  former's  Bill  of  Rights  appears  to  have 
been  borrowed  from  Pennsylvania,  and  to  have  furnished  the  model  for  the  correspond- 
ing part  of  the  Maryland  instrument.  See  Farrand,  "The  Delaware  Bill  of  Rights  of 
1776,"  American  Historical  Review,  III,  641. 


CHAPTER  X 
INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA  (Continued) 

NEW  YORK 

THE  movement  for  a  new  constitution  in  New  York  was  slower 
than  in  those  states  whose  early  constitutional  history  we  have  just 
reviewed,  on  account  of  a  strong  and  well  organized  Loyalist  element 
in  the  colony.1  However,  on  May  31,  1776,  the  Colonial  Congress, 
in  accordance  with  the  advice  of  the  Continental  body, 

"RESOLVED,  That  it  be  recommended  to  the  electors  in  the  several  counties 
in  this  colony,  by  election  in  the  manner  and  form  prescribed  for  the  election  of 
the  present  Congress,  either  to  authorize  (in  addition  to  the  power  vested  in  the 
Congress)  their  present  deputies,  or  others  in  the  stead  of  their  present  deputies, 
or  either  of  them,  to  take  into  consideration  the  necessity  and  propriety  of  insti- 
tuting such  new  government  as  in  and  by  the  said  resolution  of  the  Continental 
Congress  is  described  and  recommended;  and  if  the  majority  of  the  counties, 
by  their  deputies  in  provincial  congress,  shall  be  of  opinion  that  such  new  govern- 
ment ought  to  be  instituted  and  established,  then  to  institute  and  establish  such 
a  government  as  they  shall  deem  best  calculated  to  secure  the  rights,  liberties  and 
happiness  of  the  good  people  of  this  colony;  and  to  continue  in  force  until  a  future 
peace  with  Great  Britain  shall  render  the  same  unnecessary."  2 


Petition  of  "  Mechanicks  in  Union  " 

Meanwhile  the  Colonial  Congress  remained  in  session  for  another 
month  at  New  York,3  and  during  this  interval  an  interesting  event 
occurred  which  probably  marks  the  origin  of  the  idea  of  popular 

1  Jameson,   "Constitutional    Conventions"   (4th  Ed.,   Chicago,    1887),  sec.   150; 
Thorpe,  "Constitutional  History  of  the  American  People"  (New  York,  1898),  I,   123, 
124. 

2  New  York  Constitution  of  1777,  Preamble;  Poore,  II,  1329;   i  New  York  Re- 
vised Laws,  29,  31. 

3  Appendix  to  Proceedings  and  Debates  of  New  York  Constitutional  Convention 
of  1821  (Albany,  1821),  691.     This  appendix  is  one  of  the  sources  for  the  history  of 
the  convention  of  1777,  as  it  contains  a  brief  account  of  the  proceedings. 

156 


INSTRUMENTS    OF   THE   REVOLUTIONARY   ERA  157 

ratification  in  the  Empire  State.  On  June  14,  the  "Mechanicks 
in  Union"  of  New  York  City  and  County  presented  a  petition  to  the 
Colonial  Congress  asking  that  the  new  frame  of  government,  which 
the  forthcoming  Congress  was  to  prepare,  be  submitted  to  the  peo- 
ple for  ratification.  As  the  address  embodying  this  petition  has  not, 
it  is  believed,  been  hitherto  published  in  this  connection  and  is  un- 
usually pertinent  to  the  subject  in  hand,  presenting  the  arguments 
for  such  a  course  viewed  from  an  eighteenth  century  standpoint, 
it  is  quoted  at  length : 1  — 

"Elected  Delegates:  With  due  confidence  in  the  declaration  which  you  lately 
made  to  the  Chairman  of  our  General  Committee  that  you  are,  at  all  times,  ready 
and  willing  to  attend  to  every  request  of  your  'constituents  or  any  part  of  them'; 
we,  the  Mechanicks  in  Union,  though  a  very  inconsiderable  part  of  your  constitu- 
ents, beg  leave  to  represent  that  one  of  the  clauses  in  your  Resolve,  respecting 
the  establishment  of  a  new  form  of  Government  is  erroneously  construed,  and  for 
that  reason  may  serve  the  most  dangerous  purposes;  for  it  is  well  known  how 
indefatigable  the  emissaries  of  the  British  Government  are  in  the  pursuit  of  every 
scheme  which  is  likely  to  bring  disgrace  upon  our  rulers,  and  ruin  upon  us  all. 
At  the  same  time  we  cheerfully  acknowledge  that  the  genuine  spirit  of  liberty 
which  animates  the  other  parts  of  that  Resolve,  did  not  permit  us  to  interpret 
it  in  any  other  sense  than  that  which  is  the  most  obvious,  and  likewise,  the  most 
favourable  to  the  natural  rights  of  man.  We  could  not,  we  never  can,  believe 
you  intended  that  the  future  delegates  or  yourselves  should  be  vested  with  the 
power  of  framing  a  new  Constitution  for  this  Colony,  and  that  its  inhabitants 
at  large  should  not  exercise  the  right  which  God  has  given  them,  in  common  with 
all  men,  to  judge  whether  it  be  consistent  with  their  interest  to  accept  or  reject  a 
Constitution  framed  for  that  State  of  which  they  are  members.  This  is  the  birth- 
right of  every  man,  to  whatever  state  he  may  belong.  There  he  is,  or  ought  to 
be,  by  inalienable  right,  a  co-legislator  with  all  the  other  members  of  that  commu- 
nity. Conscious  of  our  own  want  of  abilities,  we  are,  alas !  but  too  sensible  that 
every  individual  is  not  qualified  for  assisting  in  the  framing  of  a  Constitution. 
But  that  share  of  common  sense  which  the  Almighty  has  bountifully  distributed 
amongst  mankind  in  general,  is  sufficient  to  quicken  every  one's  feeling,  and 
enable  him  to  judge  rightly  what  degree  of  safety  and  what  advantages  he  is 
likely  to  enjoy,  or  be  deprived  of,  under  any  Constitution  proposed  to  him.  For 
this  reason,  should  a  preposterous  confidence  in  the  abilities  and  integrity  of  our 
future  Delegates  delude  us  into  measures  which  might  imply  a  renunciation  of 
our  inalienable  right  to  ratify  our  laws,  we  believe  that  your  wisdom,  your  patri- 
otism, your  own  interest,  nay,  your  ambition  itself,  would  urge  you  to  exert  all 
the  powers  of  persuasion  you  possess,  and  try  every  method  which,  in  your  opin- 
ion, would  deter  us  from  perpetrating  that  impious  and  frantick  act  of  self-de- 
struction ;  for  as  it  would  precipitate  us  into  a  state  of  absolute  slavery  the  lawful 
power  which  till  now  you  have  received  from  your  constituents  to  be  exercised 

1  American  Archives,  VI,  895  et  seq. 


158  THE  PEOPLE'S   LAW 

over  a  free  people,  would  be  annihilated  by  that  unnatural  act.  It  might  prob- 
ably accelerate  our  political  death ;  but  it  must  immediately  cause  your  own.  | 

The  continual  silence  of  the  bodies  which  are,  by  election,  vested  with  an 
authority  subordinate  to  that  of  your  House,  would  strike  us  with  amazement 
should  we  suppose  that,  in  their  presence,  your  resolve  ever  was  interpreted  in 
a  sense  that  was  not  favorable  to  the  free  exercise  of  our  inalienable  rights.  But 
we,  who  daily  converse  with  numbers  who  have  been  deceived  by  such  miscon- 
struction, conceive  that  we  ought  to  inform  you  in  due  time  that  it  has  alarmed 
many  zealous  friends  to  the  general  cause  which  the  United  Colonies  are  defend- 
ing with  their  lives  and  fortunes. 

As  the  general  opinion  of  your  uprightness  depends  in  a  great  measure  on 
your  explanation  of  that  matter,  and  it  being  self-evident  that  the  political  happi- 
ness or  misery  of  the  people  under  your  Government  must  be  deeply  affected  by 
the  measures  which  they  may  adopt  in  consequence  of  such  explanation,  we  trust 
that  you  will  receive  this  respectful  Address  with  indulgence,  and  that  all  our 
brethren  in  this  and  the  other  Colonies  in  the  Union  will  do  us  the  justice  to  be- 
lieve that  it  was  dictated  by  the  purest  sentiments  of  unconfined  patriotism. 

The  Resolve  which  contains  the  obnoxious  clause  already  mentioned,  is, 
together  with  the  introduction  to  it,  in  the  following  words,  to  wit: 

'And  whereas  doubts  have  arisen  whether  this  Congress  are  invested  with 
sufficient  power  and  authority  to  deliberate  and  determine  on  so  important  a 
subject  as  the  necessity  of  erecting  and  constituting  a  new  form  of  Government 
and  internal  police,  to  the  exclusion  of  all  foreign  jurisdiction,  dominion,  and 
control  whatever;  And  whereas  it  appertains,  of  right,  solely  to  the  people  of  this 
Colony  to  determine  the  said  doubts:  Therefore 

'Resolved,  That  it  be  recommended  to  the  Electors  in  the  several  Counties 
in  this  Colony,  by  election  in  the  manner  and  form  prescribed  for  the  election 
of  the  present  Congress,  either  to  authorize  (in  addition  to  the  powers  vested  in 
this  Congress)  their  present  Deputies,  or  others  in  the  stead  of  their  present 
Deputies,  or  either  of  them,  to  take  into  consideration  the  necessity  and  propriety 
of  instituting  such  new  Government  as  in  and  by  the  said  Resolution  of  the  Con- 
tinental Congress  is  described  and  recommended;  and  if  the  majority  of  the 
Counties,  by  their  Deputies  in  Provincial  Congress,  shall  be  of  opinion  that  such 
new  Government  ought  to  be  instituted  and  established,  then  to  institute  and 
establish  such  a  Government  as  they  shall  deem  best  calculated  to  secure  the 
rights,  liberties,  and  happiness  of  the  good  people  of  this  Colony,  and  to  continue 
in  force  until  a  future  peace  with  Great  Britain  shall  render  the  same  unneces- 
sary.' 

We  cannot  forbear  expressing  our  astonishment  at  the  existence  of  the  doubts 
alluded  to  in  the  introduction  just  quoted.  But  when,  in  compassion  to  those 
weak  minds  which  give  them  birth,  you  condescend  to  declare  that  '  it  appertains 
solely  to  the  people  of  this  Colony  to  determine  the  said  doubts,'  you  have,  in 
the  spirit  of  the  recommendations  of  the  General  Congress,  demonstrated  to 
your  constituents  that  you  will,  on  all  occasions,  warn  them  to  destroy  in  its  embryo 
every  scheme  which  you  may  discover  to  have  the  least  tendency  towards  pro- 
moting the  selfish  views  of  any  foreign  or  domestick  oligarchy.  Your  enemies 


INSTRUMENTS    OF   THE    REVOLUTIONARY   ERA  159 

never  can  persuade  people  of  reflection  that  you  fully  instructed  the  most  ignorant 
amongst  us,  by  such  a  positive  declaration  of  our  rights,  for  the  purpose  of  sur- 
reptitiously obtaining  our  renunciation  of  them.  Human  nature,  depraved  as 
it  is,  has  not  yet  and  we  hope  never  will,  be  guilty  of  so  much  hypocrisy  and 
treachery. 

We  observe,  on  the  contrary,  that  your  Resolve  is  perfectly  consistent  with 
the  liberal  principles  on  which  it  is  introduced;  for,  after  having  set  forth  what 
relates  to  the  election  of  Deputies,  you  recommend  to  the  Electors,  if  the  majority 
of  the  Counties  shall  be  of  opinion  that  such  new  Government  ought  to  be  insti- 
tuted, then  to  institute  and  establish  such  a  Government. 

Posterity  will  behold  that  Resolve  as  the  test  of  your  rectitude.  It  will  prove 
that  you  have  fully  restored  to  us  exercise  of  our  right  finally  to  determine  on  the 
laws  by  which  this  Colony  is  to  be  governed;  a  right  of  which,  by  the  injustice 
of  the  British  Government,  we  have  till  now  been  deprived;  but  a  forced  and 
most  unnatural  misconstruction,  which  is  artfully  put  upon  your  Resolve,  has 
deceived  many  who  really  believe  that  we  will  not  be  allowed  to  approve  or  reject 
the  new  Constitution.  They  are  terrified  at  the  consequences,  although  a  sincere 
zeal  for  the  general  cause  inspire  them  to  suppress  their  remonstrances,  lest  the 
common  enemy  should  avail  himself  of  that  circumstance  to  undermine  your 
authority. 

Impressed  with  a  just  fear  of  the  consequence  which  result  from  that  error, 
we  conceive  it  would  be  criminal  in  us  to  continue  silent  any  longer;  and  therefore 
we  beseech  you  to  remove,  by  a  full  and  timely  explanation,  the  groundless  jeal- 
ousies which  arise  from  a  misconception  of  your  patriotick  Resolve. 

As  to  us,  who  do  not  entertain  the  least  doubt  of  the  purity  of  your  intentions ; 
who  well  know  that  your  wisdom  would  not  suffer  you  to  aim  at  obtaining  powers 
of  which  we  cannot  lawfully  divest  ourselves;  which,  if  repeatedly  declared  by 
us  to  have  been  freely  granted,  would  only  proclaim  our  insanity,  and  for  that 
reason  be  void  of  themselves;  we  beg  leave,  as  a  part  of  your  constituents,  to 
tender  to  you  that  tribute  of  esteem  and  respect  to  which  you  are  justly  entitled 
for  your  zeal  in  so  nobly  asserting  the  rights  which  the  people  at  large  have  to 
legislation,  and  in  promoting  their  free  exercise  of  those  rights.  You  have  most 
religiously  followed  the  line  drawn  by  the  General  Congress  of  the  United  Col- 
onies; their  laws,  issued  in  the  style  of  recommendations,  leave  inviolate  in  the 
Convention,  the  Committees,  and  finally  the  People  at  large,  the  right  of  rejec- 
tion or  ratification ;  but  though  it  be  decreed  by  that  august  body  that  the  punish- 
ment of  death  shall,  in  some  cases,  be  inflicted,  the  people  have  not  rejected  any 
of  their  laws,  nor  even  remonstrated  against  them.  The  reason  of  such  general 
submission  is,  that  the  whole  of  their  proceedings  is  calculated  to  promote  the 
greatest  good  to  be  expected  from  the  circumstances  which  occasion  their  resolves, 
and  scarcely  admit  the  delays  attending  more  solemn  forms. 

The  conduct  of  their  constituents,  in  this  instance,  clearly  shows  what  an 
unbounded  confidence  virtuous  rulers  may  place  in  the  sound  judgment,  integrity, 
and  moderation  of  a  free  people. 

Whatever  the  interested  supporters  of  oligarchy  may  assert  to  the  contrary, 
there  is  not,  perhaps,  one  man,  nor  any  set  of  men  upon  earth,  who,  without  the 


160  THE   PEOPLE'S   LAW 

special  inspiration  of  the  Almighty,  could  frame  a  constitution  which,  in  all  its 
parts,  would  be  truly  unexceptionable  by  the  majority  of  the  people  for  whom 
it  might  be  intended.  And  should  God  bless  any  man,  or  any  set  of  men,  with 
such  eminent  gifts,  that  man  or  those  men  having  no  separate  interest  to  support 
in  opposition  to  the  general  good,  would  fairly  submit  the  work  to  the  collective 
judgment  of  all  the  individuals  who  might  be  interested  in  its  operation.  These, 
it  is  probable,  would,  after  due  examination,  unanimously  concur  in  establishing 
that  constitution.  ('  It  would  become  their  own  joint  work,  as  soon  as  the  majority 
of  them  should  have  freely  accepted  it ;  and,  by  its  having  received  their  free 
assent,  the  only  characteristick  of  the  true  lawfulness  and  legality  that  can  be 
given  to  human  institutions,  it  would  be  truly  binding  on  the  people.  • 

Any  other  concurrence  in  the  acts  of  legislation  is  illegal  and  tyrannical; 
it  proceeds  from  the  selfish  principles  of  corrupt  oligarchy;  and  should  a  system 
of  laws  appear,  or  even  be  good  in  every  other  respect,  (which  is  scarcely  admis- 
sible,) yet  it  would  be  imperfect.  /  It  could  be  lawfully  binding  on  none  but  the 
legislators  themselves,  /and  must  continue  in  that  state  of  imperfection  which 
disgraces  the  best  laws  now  and  then  made  in  Governments  established  on  oli- 
garchic principles,  and  deprives  them  of  true  legality. 

As  such  is  the  case  with  Great  Britain  herself,  it  is  evident  that  her  Parlia- 
ment, are  so  far  from  having  a  lawful  claim  to  our  obedience,  that  they  have  it 
not  to  that  of  their  own  constituents;  that  all  our  former  laws  have  but  a  rela- 
tive legality,  and  that  not  one  of  them  is  lawfully  binding  upon  us,  though  even 
now,  for  the  sake  of  common  conveniency,  the  operation  of  most  of  them  be,  and 
ought  to  be  tolerated  until  a  new  system  of  Government  shall  have  been  freely 
ratified  by  the  co-legislative  power  of  the  people —  the  sole  lawful  Legislature 
of  this  Colony.  It  would  be  an  act  of  despotism  to  put  it  in  force  by  any  other 
means;  which  God  avert !  The  people,  it  is  true,  might  be  awed  or  openly  forced 
to  obey;  but  they  would  abhor  the  tyranny  and  execrate  the  authors.  They 
would  justly  think  that  they  were  no  longer  bound  to  submit  than  despotism 
could  be  maintained  by  the  same  violent  or  artful  means  which  would  have  pro- 
duced its  existence. 

I  But  the  free  ratification  of  the  people  will  not  be  sufficient  to  render  the  estab- 
lishment lawful,  unless  they  exercise,  in  its  fulness,  an  uncontrolled  power  to 
alter  the  Constitution  in  the  same  manner  that  it  shall  have  been  received.  This 
power  necessarily  involves  that  of  every  district  occasionally  to  renew  their  Depu- 
ties to  Committees  and  Congresses,  when  the  majority  of  such  district  shall  think 
fit ;  /and  therefore  without  the  intervention  of  the  Executive  or  any  other  power 
foreign  to  the  body  of  the  respective  electors.  That  right  is  so  essential  to  our 
safety,  that  we  firmly  believe  you  will  recommend  to  all  your  constituents  imme- 
diately to  exercise  it,  and  never  suffer  its  being  wrested  from  them;  otherwise 
the  sensibility  of  our  Delegates  could  not  allow  them  to  say  that  they  hold  their 
offices  from  the  voluntary  choice  of  a  free  people. 

We  likewise  conceive  that  this  measure  will  more  effectually,  and  more  speedily 
than  any  other,  remove  disaffected  persons  from  all  our  councils,  and  give  our  pub- 
lick  proceedings  a  much  greater  weight  than  they  have  hitherto  obtained  amongst 
our  neighbours. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  l6l 

We  never  did,  as  a  body,  nor  ever  will,  assume  any  authority  whatsoever  in 
the  public  '  transactions  of  the  present  times.'  Common  sense  teaches  us  that  the 
absurdity  of  the  claim  would  not  only  destroy  our  usefulness  as  a  body  of  '  volun- 
tary associators,  who  are  warmly  attached  to  the  cause  of  liberty;'  but  that  it  would 
likewise  expose  every  one  of  us  to  deserved  derision.  At  the  same  time,  we  assure 
your  honourable  House  that  on  all  occasions,  we  will  continue  to  testify  our  zeal 
in  supporting  the  measures  adopted  by  Congresses  and  Committees  in  the  prose- 
cution of  their  great  object —  the  restoration  of  human  rights  in  the  United  Colonies. 
And  if,  at  any  future  time,  the  silence  of  the  bodies  in  power  gives  us  reason  to 
conceive  that  our  representations  may  be  useful,  we  then  will  endeavour  to  dis- 
charge our  duty  with  propriety,  and  rely  on  publick  indulgence  for  any  imper- 
fection which  cannot  affect  our  uprightness. 
Signed  by  order  of  the  Committee: 

Malcom  McEuen,  Chairman. 
Mechanicks'  Hall,  June  14,  1776." 

The  Convention 

The  delegates  chosen  in  accordance  with  the  recommendations 
of  the  Colonial  Congress  above  quoted,  met  at  White  Plains,  July  9, 
1776,  but  nothing  was  accomplished  toward  a  new  constitution  until 
August  i,  when  a  committee  of  which  John  Jay  was  chairman  was 
appointed  to  prepare  a  draft.1  Our  accounts  of  the  proceedings  of 
the  convention  are  meagre,2  and  it  is  difficult  for  us  to  ascertain  what 
proposals  may  have  been  discussed  by  the  members,  but  we  know 
that  their  opportunities  for  effective  deliberation  were  greatly  cur- 
tailed. They  were  constantly  harassed  by  fear  of  the  enemy  which 
by  this  time  was  in  full  possession  of  New  York  City.  The 
attendance  was  extremely  irregular  —  at  one  time  only  three  — 
and  the  members  were  continually  being  called  upon  for 
other  services  to  the  American  cause.  The  convention  was  not 
even  able  to  sit  continuously  in  one  place,  but  "was  literally  driven 
from  pillar  to  post,"  among  the  villages  of  the  Hudson  valley.3 
It  is  not  likely,  therefore,  that  the  address  of  the  New  York  radi- 
cals, quoted  above,  received  much  consideration  from  the  delegates. 

Nor  is  it  probable  that,  even  under  more  favorable  conditions, 
the  plan  of  submitting  the  new  constitution  to  the  people  would  have 
met  with  favor.  In  New  York  as  in  Virginia,  the  idea  was  not  on 
fertile  soil.  Her  people  were  without  the  thorough  democratic  school- 

1  Appendix  to  Proceedings  and  Debates  of  Convention  of  1821,  691,  692. 

2  Some  account  of  its  work  is  given  by  Dougherty,  "  Constitutions  of  the  State  of 
New  York,"  Political  Science  Quarterly,  III,  490-495. 

3  Appendix  to  Proceedings  and  Debates,  692. 

M 


1 62  THE   PEOPLE'S    LAW 

ing  of  their  neighbors  across  the  New  England  border,  and  could  not 
be  expected  to  take  so  naturally  to  the  plan  of  popular  ratification. 

Hence  it  is  not  strange  that  the  draft  reported  to  the  convention 
on  March  12,  1777,  and  which  was  largely  the  work  of  John  Jay, 
contained  no  provision  for  submitting  it  to  the  people.  The  conven- 
tion made  few  changes  in  this  draft,  and  on  April  20,  1777,  "with 
but  one  dissenting  voice,"  l  it  was  proclaimed  by  its  framers  the 
constitution  of  the  state.  It  has  been  said  that  "the  instrument 
thus  framed  was  at  that  time  generally  regarded  as  the  most  ex- 
cellent of  all  the  American  Constitutions,"  2  and  that  it  "met  with 
general  approval."  3  Compared  with  others  of  its  day  it  was  cer- 
tainly long-lived.  During  forty-four  years  it  continued  substantially 
unchanged  as  the  fundamental  law  of  New  York.  In  1801  a  con- 
vention of  which  Aaron  Burr  was  president  adopted  certain  amend- 
ments relative  to  the  legislature  and  the  appointing  power,  which 
it  also  did  "ordain,  determine  and  declare"  to  be  in  force  without 
the  formality  of  popular  assent.4  But  with  this  exception  the  orig- 
inal instrument  remained  intact  until  the  great  popular  uprising  of 
the  second  decade  of  the  nineteenth  century.  The  instrument  of 
1777,  however,  was  not  a  popular  constitution  either  in  substance 
or  in  the  manner  of  its  enactment,  and  it  was  this  lack  which 
eventually  led  to  its  displacement  by  the  Constitution  of  1821.  It 
was  then  that  the  ideals  of  the  Radicals  of  1776,  as  formulated  in 
their  address  to  the  Colonial  Congress,  were  at  last  realized,  and  the 
democratic  method  of  constitution-making  as  practised  in  the  states 
founded  by  the  Calvinists  was  engrafted  upon  the  public  law  of  the 
Empire  State. 

1  Appendix  to  Proceedings  and  Debates  of  Convention  of  1821,  692. 

2  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  sec.  152. 

3  Thorpe,  "Constitutional  History  of  the  American  People"  (New  York,  1898), 
I,  126. 

4  Proceedings  and  Debates  of  Convention  of  1821,  20,  21.     Some  account  of  this 
convention  of  1821  is  given  in  Hammond's  "History  of  Political  Parties  in  New  York" 
(Albany,  1842),  I,  Chap.  VI. 


CHAPTER  XI 
INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA  (Continued) 

MASSACHUSETTS 

TRAINED  in  the  efficient  school  of  the  town  meeting,  and  strongly 
imbued  with  the  democratic  traditions  of  colonial  New  England,  the 
men  of  Massachusetts  entered  upon  the  revolution  as  the  leaders  of 
the  colonists  in  their  contest  with  the  crown.  Almost  at  the  opening 
of  the  struggle  an  incident  occurs  which  indicates  how  deeply  rooted 
was  the  principle  of  popular  ratification  in  that  commonwealth,  and 
how  lasting  was  the  effect  of  the  people's  experience  with  direct  legis- 
lation during  the  colonial  era.  The  town  of  Ashfield,  in  Hampshire, 
adopted  a  series  of  resolves  on  October  4,  1776,  relative  to  the  form 
of  government  which  should  be  established  in  lieu  of  that  which  the 
revolution  had  displaced,  and  among  them  is  the  significant  though 
crudely  expressed  demand  — 

"that  all  acts  Pased  by  the  Gineral  Cort  of  this  State  Respecting  the  Seviral 
Towns  Be  Sent  to  the  Sevaral  Towns  for  thair  Acceptants  before  they  Shall  be 
in  force."  1 

Another  indication  of  the  democratic  drift  of  public  opinion  is  the 
pamphleteering  which  makes  its  appearance  about  this  time.  One 
work  especially,2  bearing  the  date  1776,  takes  most  advanced  ground 
regarding  the  form  and  character  of  a  constitution,  and  advocates 
changes  that  were  not  generally  effected  before  the  middle  of  the 
succeeding  century.  Meanwhile  the  demand  was  growing  for  the 
displacement  of  the  colonial  charter  with  a  new  constitution.3 

1  Massachusetts  Archives,  CLVI,  131  (State  House). 

2  "The  People  the  Best  Governors  or  a  Plan  of  Government  founded  on  the  just 
principles  of  Natural  Freedom."     See  an  interesting  review  of  this  by  Harry  A.  Gushing 
in  American  Historical  Review,  I,  284. 

3  See  detailed  sketch  of  this  in  Harry  A.  Gushing*  s  "Transition  from  Provincial 
to  Commonwealth  Government  in  Massachusetts,"  Columbia  University  Studies,  VII, 
196-199. 

163 


1 64  THE  PEOPLE'S  LAW 


A.     The  Rejected  Constitution  (7/1778 

Early  in  June,  1776,  the  General  Court  appointed  a  committee 
of  twelve  to  report  plans  for  a  new  form  of  government.1  Nothing 
substantial  came  of  this,  however,  since,  to  quote  the  words  of  an 
eminent  local  historian,2  —  "the  opinion  was  generally  expressed  that 
the  subject  should  originate  with  the  people  who  were  the  proper 
authorities  to  attend  to  this  matter."  In  the  following  September 
the  House  of  Representatives,  adopting  a  course  more  in  harmony 
with  the  democratic  tradition,  requested  the  towns  to  indicate  whether 
they  would  consent  that  the  General  Court  should  enact  a  constitu- 
tion.3 Less  than  half  of  the  towns  took  action  on  this  request,4  but 
among  them  were  some  of  those  of  Worcester  County.  At  a  con- 
vention of  the  committees  of  safety  of  a  majority  of  these  towns  of 
Worcester  it  was  resolved  that  it  would  not  be  proper  for  the  Gen- 
eral Court  to  enact  a  constitution  but  that  — 

"a  State  Congress,  chosen  for  the  sole  purpose  of  forming  a  Constitution  of 
Government " 

should  be  convened  for  that  purpose.5  Concord  also  voted  to  with- 
hold consent  on  the  ground  — 

"that  the  supreme  legislature,  in  their  corporate  capacity,  were  by  no  means 
the  proper  body  to  form  and  establish  such  a  constitution  and  that  a  convention 
or  congress,  specially  chosen,  should  be  intrusted  with  the  business."6 

Other  towns,  including  Boston  and  Andover,7  Norton  and  Lexing- 
ton,8 voted  against  the  plan  of  enacting  the  constitution  by  the  General 

1  Journal  of  the  Massachusetts  House  of  Representatives,  June  4,  6,  1776;  "Works 
of  John  Adams"  (Boston,  1854),  IX,  429,  442;  Bradford,  "History  of  Massachusetts" 
(Boston,  1825),  II,  117. 

2  Barry,  "History  of  Massachusetts"  (Boston,  1857),  III,  173. 

3  Journal  of  Massachusetts  House  of  Representatives  for  September  17,  1776. 

4  Harding,  "The  Federal  Constitution  in  Massachusetts"  (New  York,  1896),  Har- 
vard Historical  Series,  II,  6.     The  author  thinks  that  this  may  have  been  due  to  the 
non-concurrence  of  the  Council  in  submitting  the  request. 

5  American  Archives  (Washington,  1837),  5th  Series,  III,  867;  Lincoln,  "History 
of  Worcester,"  118;  Barry,  "History  of  Massachusetts,"  III,  173. 

8  Barry,  "History  of  Massachusetts"  (Boston,  1857),  III,  173,  note;  Shattuck, 
"History  of  Concord,"  127,  128. 

7  Bradford,  "History of  Massachusetts"  (Boston,  1825,  )  II,  140;  Barry,  "History 
of  Massachusetts"  (Boston,  1857),  III,  174. 

8  See  Jameson,  "An  Introduction  to  the  Study  of  the  Constitutional  and  Political 
History  of  the  States,"  Johns  Hopkins  University  Studies,  IV,  204  et  seq. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  165 

Court  and  in  favor  of  the  convention  system,  and  in  many  cases  their 
reasons  are  set  forth  in  detail.  Still  others  favored  a  new  constitution, 
but  suggested  other  plans  for  its  adoption.1 

Notwithstanding  these  clear  expressions  of  opinion,  which,  though 
emanating  from  a  minority  of  the  towns,  came  nevertheless  from 
some  of  the  important  ones,  the  General  Assembly,  on  May  5,  1777, 
adopted  the  following : 2  — 

"Resolved,  That  it  be,  and  hereby  is  recommended  to  the  several  towns  and 
places  in  this  state,  empowered  by  the  laws  thereof  to  send  members  to  the  Gen- 
eral Assembly,  that,  at  their  next  election  of  a  member  or  members  to  represent 
them,  they  make  choice  of  men,  in  whose  integrity  and  ability  they  can  place 
the  greatest  confidence;  and,  in  addition  to  the  common  and  ordinary  powers 
of  representation,  instruct  them  with  full  powers,  in  one  body  with  the  Council, 
to  form  such  a  Constitution  of  Government  as  they  shall  judge  best  calculated  to 
promote  the  happiness  of  this  State;  and,  when  completed,  to  cause  the  same 
to  be  printed  in  all  the  Boston  newspapers,  and  also  in  handbills,  one  of  which 
to  be  transmitted  to  the  Selectmen  of  each  town,  or  the  committee  of  each  plan- 
tation, to  be  by  them  laid  before  their  respective  towns  or  plantations,  at  a  regular 
meeting  of  the  inhabitants  thereof,  to  be  called  for  that  purpose,  in  order  to  its 
being,  by  each  town  and  plantation,  duly  considered,  and  a  return  of  their  appro- 
bation or  disapprobation  to  be  made  into  the  Secretary's  office  of  this  State,  at 
a  reasonable  time,  to  be  fixed  upon  by  the  General  Court;  specifying  the  num- 
bers present  at  such  meeting  voting  for,  and  those  voting  against  the  same ;  and, 
if  upon  a  fair  examination  of  said  returns  by  the  General  Court,  or  such  a  com- 
mittee as  they  shall  appoint  for  that  purpose,  it  shall  appear,  that  the  said  Form 
of  Government  is  approved  of  by  at  least  two  thirds  of  those  who  are  free,  and 
twenty-one  years  of  age,  belonging  to  this  State,  and  present  in  the  several  meet- 
ings, then  the  General  Court  shall  be  empowered  to  establish  the  same  as  the 
Constitution  and  Form  of  Government  of  the  State  of  Massachusetts  Bay." 

At  the  ensuing  election  "a  majority  of  the  towns  in  the  state,  it 
would  seem,  chose  their  representatives  for  the  next  annual  session 
of  the  General  Court  with  a  special  view,  or  at  least  with  an  implied 
consent,  to  the  formation  of  a  constitution  by  that  body."  3  Such,  at 

1  Gushing,  "Transition  from  Provincial  to  Commonwealth  Government,"  Colum- 
bia University  Studies,  VII,  200  et  seq. 

2  Journal  of  Massachusetts  House  of  Representatives  for  May  5,  1777.     The  text 
of  this  resolve  is  also  embodied  in  the  preamble  to  the  rejected  constitution  of  1778. 
See  Journal  of  First  Massachusetts  Constitutional  Convention,  Appendix,  255,  256. 

3  Barry,  "History  of  Massachusetts"  (Boston,   1857),  III,   173,   174.     Bradford 
says :   "  It  is  presumed  the  representatives  would  not  have  proceeded  to  prepare  a  con- 
stitution, unless  the  greater  part  of  the  towns  in  the  state  had  authorised  the  measure. 
No  document  can  be  found  in  the  secretary's  office,  to  determine  how  many  towns 
voted  for  it."  —  "History  of  Massachusetts"  (Boston,  1825),  II,  140,  note. 


1 66  THE   PEOPLE'S   LAW 

any  rate,  appears  to  have  been  the  opinion  of  the  newly  elected 
General  Court  itself,  for  in  the  preamble  to  the  proposed  constitution 
framed  by  that  body  it  was  recited  that  — 

"the  good  People  of  this  State  in  pursuance  of  the  said  resolution,  and  reposing 
special  trust  and  confidence  in  the  Council  and  in  their  Representatives,  have 
appointed,  authorized  and  instructed  their  Representatives,  in  one  body  with  the 
Council,  to  form  such  a  constitution  of  Government  as  they  shall  judge  best  cal- 
culated to  promote  the  happiness  of  this  State,  and  when  completed,  to  cause 
the  same  to  be  published  for  their  inspection  and  consideration." l 

Proceeding  on  this  assumption,  the  new  General  Court,  soon 
after  it  convened  in  May,  1777,  appointed  a  committee  of  eight 
from  the  House  and  four  from  the  Council  to  draft  a  new  consti- 
tution.2 The  instrument  thus  framed  was  reported  to  the  General 
Court,  acting  as  a  convention,  and  after  considerable  debate  it  was, 
on  February  28,  1778,  agreed  upon  "to  be  laid  before  the  several 
towns  and  plantations  in  said  State  for  their  approbation  or  dis- 
approbation." 3 

But  the  members  of  the  General  Court  had  mistaken  the  temper 
of  their  constituents.  For  though  that  body  had  observed  the  demo- 
cratic and  traditional  usage  in  submitting  the  result  of  its  labors  to 
the  people,  it  had  failed  to  take  note  of  the  strong  demand  for  a  con- 
stitution framed  by  a  convention  called  specially  for  that  purpose. 
The  new  instrument  was  transmitted  to  the  towns  as  provided  in  the 
original  resolve,  and  while  one  hundred  and  twenty  of  the  towns 
made  no  returns,4  the  others  took  action  at  various  meetings  up  to 
June  15,  I778.5  The  detailed  criticism,  often  severe,  of  the  conven- 
tion's work,  in  the  town  resolves  6  demonstrates  the  thoroughness 
with  which  the  sovereign  people  was  exercising  its  power. 

When  the  results  of  these  meetings  were  finally  reported,  it  was 
found  that  the  proposed  constitution  had  been  rejected  by  a  vote  of 
ten  thousand  as  against  two  thousand  for  its  adoption,  the  electors  of 

1  Constitution  of  1778,  Journal  of  First  Constitutional  Convention  (Boston,  1832), 
Appendix,  256. 

'Barry,  III,  175. 

8  Journal  of  First  Constitutional  Convention  (Boston,  1832),  Appendix,  255. 

*  Barry,  III,  175,  note;  Bradford,  II,  158. 

6  Journal  of  First  Constitutional  Convention  (Boston,  1832),  Appendix,  255. 

8  See  for  some  interesting  examples,  Cushing's  "Transition  from  Provincial  to 
Commonwealth  Government  in  Massachusetts,"  Columbia  University  Studies,  VII,  215 
et  seq. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  167 

Boston  being  unanimous  for  rejection l  and  those  of  other  towns  prac- 
tically so.2 

While  there  were  no  doubt  other  reasons  for  this  result,  such  as 
intrinsic  objections3  to  the  proposed  constitution  itself  and  the  hos- 
tility of  the  aristocratic  element  which  preferred  the  continuation  of 
the  existing  government  which  it  dominated,4  still  the  belief  that  the 
proper  method  had  not  been  followed  in  framing  the  instrument  was 
a  potent  factor  in  bringing  about  its  rejection.  As  Barry  says : 5  — 

"The  opinion  was  still  current  that  a  convention  was  the  proper  body  to 
decide  upon  a  constitution  for  the  State  and  that  no  other  body  could  successfully 
discharge  that  duty." 

Thus  early  did  the  yeomanry  of  Massachusetts  display  the  effects 
of  their  colonial  schooling  in  the  real  and  active  work  of  government. 
To  them  their  part  in  the  establishment  of  a  new  constitution  was  no 
perfunctory  one,  nor  was  it  to  be  committed  to  others.  They  had 
settled  convictions  both  as  to  what  the  new  civic  framework  should 
be,  and  as  to  how  it  should  come  into  being,  and  they  insisted  that 
those  convictions  be  respected  to  the  letter. 

B.     The  Articles  of  Confederation 

While  this  movement  to  secure  a  new  constitution  for  the  com- 
monwealth was  in  progress,  the  people  of  Massachusetts  were  being 
accorded  still  another  experience  in  popular  law-making.  The 
Articles  of  Confederation,  which  had  been  agreed  to  by  Congress 6  in 
1777  were  not,  in  Massachusetts,  ratified  merely  by  the  legislature 

1  Barry,  III,  175,  note;   Bradford,  II,  158. 

2  E.g.  Weston,  where  57  were  against  approval  and  only  6  in  favor.     Minutes  of 
Town  Clerk,  reprinted  Referendum  News,  I,  25. 

3  Thorpe,  "Constitutional  History  of  the  American  People"  (New  York,  1898), 
I,  130;    Harding,  "The  Federal  Constitution  in  Massachusetts"  (New  York,  1896), 
Harvard  Historical  Studies,  11,6, note;  Bradford,  "History  of  Massachusetts"  (Boston, 
1825),  II,  158,  159;  Hobart,  "History  of  Abington,"  136.     A  pamphlet  was  issued  at 
Newburyport  setting  forth,  in  eighteen  articles,  the  defects  of  the  proposed  constitution. 
Barry  observes :  — 

"  The  objections  to  this  instrument  were,  that  it  contained  no  declaration  of  rights, 
which  was  an  essential  defect;  that  the  principle  of  representation  was  unequal,  in- 
asmuch as  even  the  smallest  towns  were  allowed  to  have  one  representative,  and  others 
unless  containing  three  hundred  polls,  were  confined  to  that  number;  and  that  the 
powers  and  duties  of  the  legislators  and  rulers  were  not  clearly  and  accurately  defined." 
(Ill,  175.)  4  Smith,  "History  of  Pittsfield,"  I,  357.  6  III,  176. 

8  Jameson,  "Constitutional  Conventions,"  sec.  159;  Schouler,  "Constitutional 
Studies,"  Pt.  II,  Chap.  III. 


1 68  THE  PEOPLE'S  LAW 

as  in  most  of  the  other  colonies.1  The  General  Court,  following  the 
same  plan  as  in  the  then  pending  state  constitution,  submitted  to  the 
electors  the  question  whether  these  Articles  were  to  become  the  law 
of  the  land,  and  here  again  the  electors  did  not  stop  at  any  halfway 
exercise  of  what  they  considered  their  prerogatives,2  nor  did  they,  as 
a  rule,  confine  themselves  to  merely  accepting  or  rejecting  as  in  the 
case  of  the  later  French  plebiscites.3  They  were  not  slow  to  point 
out  features  which  met  their  disapproval  and  to  suggest  amendments 
and  changes  in  the  Articles.  Some  of  these  suggestions  are  curiously 
significant  of  the  intense  interest  in  civic  affairs  manifested  by  these 
rude  townsfolk  as  a  result  of  their  experience  in  practical  self-govern- 
ment. Thus  the  people  of  historic  Lexington  recommended  that  the 
states  retain  the  power  of  offering  amendments  to  Congress.4  The 
town  of  Bridgewater  gave  as  its  judgment  that  all  questions  before 
Congress  ought  to  be  decided  by  at  least  eleven  states.5  The  voters 
of  Amesbury  thought  that  a  change  should  be  made  in  the  fiscal  ar- 
rangements of  the  confederation,  so  that  its  expenses  might  be  borne 
proportionately  by  the  states  ''according  to  the  value  and  income  of 
personal  as  well  as  real  estate." 6  Some  of  the  towns  objected  to  con- 
ferring on  Congress  the  power  of  determining  war  and  peace,  main- 
taining that  this  should  be  left  with  the  people.7  Others  were  "of 
opinion  that  the  Protestant  Religion  is  not  duly  Guarded  in  Said 
Confederation"  8  or  feared  "the  Arts  and  Schemes  of  crafty,  design- 
ing and  ambitious  Men."  9  It  is  clear  that  these  "men  of  the  town 
meeting  "  had  been  pondering  on  the  problems  of  government.  They 
held  views  which,  if  sometimes  crude,  were  none  the  less  pronounced ; 
and  they  considered  themselves  competent  to  devise  features  not 
alone  for  the  constitution  of  their  own  state  but  also  for  the  govern- 
ment of  the  whole  thirteen  states.  Such  instances  of  political  self- 
reliance  are  not  to  be  found  in  those  colonies  which  had  never  recog- 
nized the  principle  of  popular  ratification. 

1  "It  was  ratified  by  the  States  and  not  by  the  citizens  of  the  several  States  of  the 
Union."  — Jameson,  sec.  161.     Cf.  Curtis,  "History  of  the  Constitution  of  the  United 
States,"  I,  Chap.  V;  Fisher,  "Evolution  of  the  Constitution,"  248  et  seq. 

2  In  Weston  the  inhabitants  "  voted  to  accept  of  the  consideration  of  perpetual 
union  as  adopted  by  the  Congress  and  that  the  representatives  be  instructed  to  act 
accordingly."     Minutes  of  Town  Clerk,  reprinted,  Referendum  News,  I,  24. 

3  See  post,  Chap.  XXIX. 

4  See  Massachusetts  Archives,  295,  Bk.  II,  Pt.  III.  6  Id.  302. 

6  Id.  300.  7  E.g.  Palmer,  Id.  294.     Cf.  Amesbury,  Id.  300. 

8  Westborough,  Massachusetts  Archives,  CLVI,  299.  9  Lexington,  Id.  295. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  169 


C.     The  Constitution  of  1780 

Warned  by  the  fate  which  befell  its  first  effort  in  constitution- 
making  the  next  general  court,  after  the  rejection  of  the  instrument 
of  1778,  took  steps  to  consult  the  people  at  the  outset  as  to  what 
course  should  be  followed  in  a  second  attempt.  On  February  20, 
1779,  tne  following  "  resolve  "  was  adopted  :  — 

"  WHEREAS  the  Constitution  or  Form  of  Civil  Government  which  was  pro- 
posed by  the  late  Convention  of  this  State  to  the  People  thereof,  hath  been  dis- 
approved by  a  majority  of  the  Inhabitants  of  said  State, 

And  Whereas,  it  is  doubtful,  from  the  Representations  made  to  this  Court, 
what  are  the  Sentiments  of  the  major  part  of  the  good  People  of  this  State l  as 
to  the  expediency  of  now  proceeding  to  form  a  new  Constitution  of  Government, 

Therefore,  Resolved,  That  the  Selectmen  of  the  several  Towns  within  this 
State  cause  the  Freeholders  and  other  Inhabitants  in  their  respective  towns  duly 
qualified  to  vote  for  Representatives,  to  be  lawfully  warned  to  meet  together  in 
some  convenient  place  therein,  on  or  before  the  last  Wednesday  of  May  next, 
to  consider  of,  and  determine  upon  the  following  questions: 

First.  —  Whether  they  chuse,  at  this  time,  to  have  a  new  Constitution  or 
Form  of  Government  made? 

Secondly.  —  Whether  they  will  empower  their  Representatives  for  the  next 
Year  to  vote  for  the  calling  a  State  Convention,  for  the  sole  purpose  of  forming 
a  new  Constitution,  provided  it  shall  appear  to  them,  on  examination,  that  a 
major  part  of  the  people  present  and  voting  at  the  meetings,  called  in  the  manner 
and  for  the  purpose  aforesaid,  shall  have  answered  the  first  question  in  the  affirma- 
tive? 

And  in  order  that  the  sense  of  the  People  may  be  known  tJiereon,  BE  IT  FURTHER 
RESOLVED,  That  the  Selectmen  of  each  town  be  and  hereby  are  directed  to  return 
into  the  Secretary's  Office,  on  or  before  the  first  Wednesday  in  June  next  the 
doings  of  their  respective  towns  on  the  first  question  above  mentioned,  certifying 
the  numbers  voting  in  the  affirmative  and  the  numbers  voting  in  the  negative, 
on  said  question."  2 

The  response  of  the  electorate  to  this  appeal  was  prompt  and 
pronounced.  For  though  "  nearly  one-third  of  the  towns  neglected 
to  make  returns"  3  those  which  were  made  disclosed  a  large  majority 

1  "More  expressions  from  the  towns  had  meanwhile  been  heard."  —  Gushing, 
"Transition  from  Provincial  to  Commonwealth  Government,"  Columbia  University 
Studies,  VII,  227,  note  2. 

2  Appendix  to  Journal  of  First  Constitutional  Convention    (Boston,  1832),  pp. 
189, 190;  Resolves  of  the  General  Assembly  of  the  State  of  Massachusetts  Bay  in  New 
England  (Boston,  1778),  120. 

8  Barry,  "History  of  Massachusetts"  (Boston,  1857),  Vol.  Ill,  176,  note  i. 


I/O  THE   PEOPLE'S   LAW 

in  favor  of  the  convention,  so  that  on  June  15,  the  House  of  Repre- 
sentatives felt  justified  in  adopting  the  following : 1  — 

"Whereas,  by  the  returns  made  into  the  Secretary's  Office  from  more  than 
two-thirds  of  the  Towns  belonging  to  this  State  agreeably  to  a  Resolve  of  the 
General  Court,  of  the  2oth  of  February  last,  it  appears,  that  a  large  majority  of 
the  inhabitants  of  such  Towns,  as  have  made  return  as  aforesaid,  think  it  proper 
to  have  a  new  Constitution  or  form  of  Government  and  are  of  opinion  that 
the  same  ought  to  be  framed  by  a  Convention  of  Delegates,  who  should  be  spe- 
cially authorized  to  meet  for  this  purpose, 

Therefore  Resolved,  That  it  be  and  it  hereby  is  recommended  to  the  several 
inhabitants  of  the  several  Towns  in  this  State  to  form  a  Convention  for  the  sole 
purpose  of  framing  a  new  Constitution,  consisting  of  such  number  of  Delegates, 
from  each  Town  throughout  this  State,  as  every  different  Town  is  entitled  to 
send  Representatives  to  the  General  Court,  to  meet  at  Cambridge  in  the  County 
of  Middlesex,  on  the  First  day  of  September  next.  And  the  Selectmen  of  the 
several  Towns  and  Places  within  this  State,  empowered  by  the  laws  thereof  to 
send  members  to  the  General  Assembly,  are  hereby  authorized  and  directed  to 
call  a  meeting  of  their  respective  Towns,  at  least  fourteen  days  before  the  meeting 
of  said  Convention  to  elect  one  or  more  Delegates,  to  represent  them  in  said  Con- 
vention, at  which  meeting,  for  the  election  of  such  Delegate  or  Delegates,  every 
Freeman,  Inhabitant  of  such  Town,  who  is  twenty-one  years  of  age  shall  have  a 
right  to  vote. 

Be  it  also  Resolved,  That  it  be,  and  hereby  is  recommended,  to  the  Inhabitants 
of  the  several  Towns  in  this  State,  to  instruct  their  respective  Delegates,  to  cause 
a  printed  copy  of  the  Form  of  a  Constitution  they  may  agree  upon  in  Convention, 
to  be  transmitted  to  the  Selectmen  of  each  Town,  and  the  Committee  of  each 
Plantation;  and  the  said  Selectmen  and  Committees  are  hereby  empowered 
and  directed  to  lay  the  same  before  their  respective  Towns  and  Plantations,  at 
a  regular  meeting  of  the  Male  Inhabitants  thereof,  being  free  and  twenty-one 
years  of  age,  to  be  called  for  that  purpose,  in  order  to  its  being  duly  considered 
and  approved  or  disapproved  by  said  Towns  and  Plantations:  And  it  is  also 
recommended  to  the  several  Towns  within  this  State,  to  instruct  their  respective 
Representatives  to  establish  the  said  Form  of  a  Constitution,  as  the  Constitution 
and  Form  of  Government  of  the  State  of  Massachusetts  Bay,  if,  upon  a  fair  exami- 
nation, it  shall  appear,  that  it  is  approved  of  by  at  least  two -thirds  of  those,  who 
are  free  and  twenty-one  years  of  age,  belonging  to  this  State,  and  present  in  the 
several  meetings." 

The  requirement  of  two-thirds  in  order  to  ratify  is  the  one  trace 
of  conservatism  in  this.  It  would  take  another  generation  before 
Massachusetts  would  permit  constitution-making  by  a  simple  majority. 

Pursuant  to  this  resolve,  elections  were  held  in  the  various  towns 
and  delegates  chosen,  some  of  whom  received  explicit  instructions 

1  Journal  of  First  Constitutional  Convention  (Boston,  1832),  5,  6. 


INSTRUMENTS   OF  THE   REVOLUTIONARY    ERA  171 

from  their  respective  towns  as  to  what  the  new  code  should  con- 
tain.1 

The  Convention 

The  personnel  of  the  convention,  which  met  at  the  appointed  time 
and  place,  was  most  distinguished  and  gave  promise  of  the  finished 
work  which  it  was  to  bring  forth.  Among  its  three  hundred  and 
twenty  members  were  Samuel  and  John  Adams,  John  Hancock, 
Robert  Treat  Paine,  and  James  Bowdoin,  the  last  named  being 
selected  as  president  of  the  convention,  and  many  others  less  famous.2 
Indeed,  the  membership  has  been  pronounced  "a  union  of  talent  and 
patriotism  such  as  the  country  had  never  seen  up  to  that  time,  and 
whose  superior  has  not  been  seen  since."  3 

Foremost  in  the  work  of  this  distinguished  assemblage  was  John 
Adams,  whose  relation  to  the  constitution  framed  by  it  has  been 
compared  to  that  of  Jefferson  with  respect  to  the  Declaration  of 
Independence.4  The  preparation  of  the  original  draft  is  thus  de- 
scribed :  — 

"A  committee  was  chosen,  consisting  of  thirty  persons,  to  prepare  a  declara- 
tion of  rights  and  the  form  of  a  constitution.  .  .  .  Immediately  upon  the  adjourn- 
ment, the  committee  met  in  Boston,  and,  after  extended  discussion,  delegated  to  a 
sub-committee  of  three  members,  the  duty  of  preparing  a  draught  of  a  constitution. 
The  three  were  Mr.  Bowdoin,  Mr.  Samuel  Adams  and  John  Adams.  By  this 
sub-committee  the  task  was  committed  to  John  Adams  who  performed  it.  To 
them  the  draught  was  first  submitted,  and  they  accepted  it,  with  one  or  two  trifling 
erasures.  It  was  then  reported  to  the  grand  committee,  who  made  some  altera- 

1  Gushing,  "Transition  from  Provincial  to  Commonwealth  Government,"  Colum- 
bia University  Studies,  VII,  229  et  seq. 

2  See  the  roster,  Journal  of  the  First  Constitutional  Convention,  8-19.   Thorpe  says: 
"  Of  these  John  Adams,  Samuel  Adams,  John  Hancock,  and  Robert  Treat  Paine,  were 
signers;    John  Hancock,  Samuel  Adams,  and  Samuel  Holton  signed  the  Articles  of 
Confederation ;  Gorham  signed  the  Constitution  of  the  United  States.     John  Hancock, 
Samuel  Adams,  Increase  Sumner,  James  Sullivan,  Caleb  Strong,  and  Levi  Lincoln 
became  Governors  of  the  State  —  Strong  and  Lincoln  each  twice.     William  Gushing 
declined  the  office  of  Chief  Justice  of  the  United  States,  and  Levi  Lincoln  that  of 
Associate  Justice.     John  Lowell  became  United  States  District  Judge.     Theophilus  Par- 
sons was  for  a  short  time  Attorney-General  of  the  United  States  under  John  Adams. 
Ten  of  the  members  became  delegates  to  the  old  Congress  and  twelve  to  the  national,  — 
of  these,  George  Cabot,  Benjamin  Goodhue,  and  Caleb  Strong  were  Senators  (1789- 
1803).    Seventeen  of  the  members  became  Presidential  Electors  (1789-1821)."  —  "  Con- 
stitutional History,"  I,  132,  note. 

3  Robert  C.  Winthrop,  "Addresses  and  Speeches"  (Boston,  1886),  IV,  171. 

4  Thorpe,  "Constitutional  History  of  the  American  People,"  (New  York,  1898),  I, 


THE   PEOPLE'S    LAW 

tions.  The  preparation  of  a  declaration  of  rights  was  intrusted  by  the  general 
committee  to  Mr.  Adams  alone.  It  was  reported  by  him,  with  the  exception  of 
the  third  article  upon  which  he  could  not  satisfy  his  own  judgment.  .  .  . 

Considering  all  these  circumstances,  as  well  as  the  entire  coincidence  of  the 
leading  features  of  the  system  with  the  views  of  his  whole  life,  it  is  fair  to  infer, 
that  the  paper  was  so  far  the  product  of  his  mind,  as  to  merit  a  place  in  these 
volumes  of  his  works."  l 

With  the  subject-matter  of  the  instrument  framed  by  this  body 
we  are  not  here  directly  concerned  except  so  far  as  it  may  relate  to 
the  development  of  popular  ratification.  But  it  is  interesting  to  note 
throughout  the  record  of  its  labors  the  convention's  recognition  of 
the  sovereignty  of  the  people  and  its  almost  painful  solicitude  for  the 
favor  of  that  sovereign.  On  the  second  day  of  the  session  and  before 
its  real  work  had  begun,  it  was 

"Resolved,  That  it  is  the  opinion  of  this  Convention  that  they  have  sufficient 
authority  from  the  People  of  the  Massachusetts  Bay  to  proceed  to  the  framing 
a  new  Constitution  of  Government  to  be  laid  before  them  agreeably  to  their  in- 
structions." z 

On  the  following  day  it  was  further 

"Resolved,  That  it  is  of  the  Essence  of  a  free  Republic  that  the  People  be 
governed  by  FIXED  LAWS  OF  THEIR  OWN  MAKING."  3 

On  September  7,  a  resolution  was  passed  calculated  to  secure 
the  attendance  of  delegates  from  the  unrepresented  towns  and  promis- 
ing that  any  delegate  producing  a  proper  certificate  "from  the  Select- 
men, or  the  Town  Clerk  of  the  Town,  he  or  they  may  represent, 
shall  be  admitted  to  vote  and  act  in  this  Convention."  4  Care  was 
also  taken  to  secure  the  election  of  delegates  in  place  of  one  who  had 
died,5  and  another  (John  Adams)  who  had  been  sent  to  Europe  on  a 
diplomatic  mission.6  In  November,  just  before  the  convention  ad- 
journed for  a  recess,  President  Bowdoin  issued  an  address  to  the 
members  in  which  the  importance  of  satisfying  the  people  is  the 
pervading  thought.  He  says  inter  alia : 7  — 

"As  the  good  people  of  this  State  are  impressed  with  the  idea  of  the  necessity 
of  a  new  and  a  good  Constitution  of  Government,  and  have  a  right  to  expect  of 
the  present  Convention  the  exertion  of  their  best  abilities  to  frame  such  an  one; 
and  as  the  framing  it,  and  its  acceptance,  when  framed,  must  greatly  depend  on 

1  "  Life  and  Works  of  John  Adams,  Second  President  of  the  United  States " 
(Boston,  1851),  IV,  215,  216. 

2  Journal  of  First  Constitutional  Convention  (Boston,  1832),  22. 

3  Id.  24.  *  Id.  33.  6  Id.  45.  e  Id.  51.  7  Id.  49. 


INSTRUMENTS   OF  THE   REVOLUTIONARY   ERA  173 

the  collective  wisdom  of  the  Convention  being  had,  in  the  final  determination  on 
every  part  of  it,  but  which  cannot  be  had  without  a  general  and  constant  attend- 
ance; I  am  directed  by  a  vote  of  the  Convention,  to  enjoin  upon  the  members,  from 
its  necessity  and  importance,  A  CONSTANT  AND  GENERAL  ATTENDANCE  accordingly. 
Gentlemen  do  not  need  to  be  informed  that  they  will  find  it  difficult,  if  not 
impossible,  to  explain,  to  the  satisfaction  of  their  constituents,  any  form  of  Gov- 
ernment the  Convention  may  agree  upon,  unless  they  had  been  present  at  the 
debates  and  entered  minutely  into  the  grounds  and  reasons  of  every  decision. 
Even  the  best  form  may  be  rejected,  for  want  of  such  an  explanation  and  removing 
objections,  which,  had  they  duly  attended  the  Convention,  might  without  diffi- 
culty have  been  removed." 

The  question  of  submitting  the  constitution  to  the  electors  was, 
of  course,  not  debated  in  the  convention.  It  had  been  settled  by  the 
resolves  of  the  General  Court  and  indeed  by  the  whole  course  of 
Massachusetts  political  history.  But  the  method  of  changing  the 
constitution  in  case  it  should  be  adopted,  was  the  subject  of  some 
discussion.  The  plan  finally  chosen  was  that  of  amendment  by  con- 
vention, a  plan  which  was  employed  but  once,  much  later  than  at 
first  intended,  and  then  discarded  for  the  system  of  amendments 
framed  by  the  legislature  and  adopted  by  the  people.  The  provi- 
sion in  the  instrument  of  1780  was  as  follows : l  — 

"In  order  the  more  effectually  to  adhere  to  the  principles  of  the  constitution, 
and  to  correct  those  violations  which  by  any  means  may  be  made  therein,  as  well 
as  to  form  such  alterations  as  from  experience  shall  be  found  necessary,  the  gen- 
eral court  which  shall  be  in  the  year  of  our  Lord,  one  thousand  seven  hundred 
and  ninety-five,  shall  issue  precepts  to  the  selectmen  of  the  several  towns,  and 
to  the  assessors  of  the  unincorporated  plantations,  directing  them  to  convene 
the  qualified  voters  of  their  respective  towns  and  plantations,  for  the  purpose  of 
collecting  their  sentiments  on  the  necessity  or  expediency  of  revising  the  constitu- 
tion in  order  to  amendments. 

And  if  it  shall  appear,  by  the  returns  made,  that  two-thirds  of  the  qualified 
voters  throughout  the  State,  who  shall  assemble  and  vote  in  consequence  of  the 
said  precepts,  are  in  favor  of  such  revision  or  amendment,  the  general  court 
shall  issue  precepts,  or  direct  them  to  be  issued  from  the  secretary's  office,  to  the 
several  towns  to  elect  delegates  to  meet  in  convention  for  the  purpose  aforesaid. 

And  said  delegates  to  be  chosen  in  the  same  manner  and  proportion  as  their 
representatives  in  the  second  branch  of  the  legislature  are  by  this  constitution  to 
be  chosen." 

The  Submission 

When  the  convention  had  completed  its  labors,  it  adjourned  to 
await,  not  without  some  misgivings,  the  action  of  the  voters.  But  it 

1  Constitution,  Chap.  VI,  Art,  X;  Poore,  "  Charters  and  Constitutions,"  1, 972, 973. 


174  THE  PEOPLE'S   LAW 

was  careful  to  provide  for  the  alternative  of  rejection,  at  least  in  part, 
as  the  following,  adopted  March  2,  1780,  will  show: *  — 

"Resolved,  That  this  Convention  be  adjourned  to  the  first  Wednesday  in 
June  next,  to  meet  at  Boston ;  and  that  eighteen  hundred  copies  of  the  Form  of 
Government,  which  shall  be  agreed  upon,  be  printed;  and  including  such  as 
shall  be  ordered  to  each  Member  of  the  Convention,  be  sent  to  the  Selectmen 
of  each  Town,  and  the  Committees  of  each  Plantation,  under  the  direction  of  a 
Committee  to  be  appointed  for  the  purpose ;  and  that  they  be  requested,  as  soon 
as  may  be,  to  lay  them  before  the  Inhabitants  of  their  respective  Towns  and  Plan- 
tations. And  if  the  major  part  of  the  inhabitants  of  the  said  Towns  and  Planta- 
tions disapprove  of  any  particular  part  of  the  same,  that  they  be  desired  to  state 
their  objections  distinctly,  and  the  reasons  therefor :  And  the  Selectmen  and  Com- 
mittees aforesaid  are  desired  to  transmit  the  same  to  the  Secretary  of  the  Conven- 
tion, on  the  first  Wednesday  in  June,  or  if  may  be,  on  the  last  Wednesday  in  May, 
in  order  to  his  laying  the  same  before  a  Committee,  to  be  appointed  for  the  pur- 
pose of  examining  and  arranging  them  for  the  revision  and  consideration  of  the 
Convention  at  the  adjournment;  with  the  number  of  voters  in  the  said  town  and 
plantation  meetings,  on  each  side  of  every  question;  in  order  that  the  said  Con- 
vention, at  the  adjournment,  may  collect  the  general  sense  of  their  constituents  on 
the  several  parts  of  the  proposed  Constitution;  and  if  there  doth  not  appear  to 
be  two-thirds  of  their  constituents  in  favour  thereof,  that  the  Convention  may 
alter  it  in  such  a  manner  as  that  it  may  be  agreeable  to  the  sentiment  of  two-thirds 
of  the  voters  throughout  the  State. 

RESOLVED,  That  it  be  recommended  to  the  Inhabitants  of  the  several  towns 
and  plantations  in  this  State,  to  empower  their  Delegates,  at  the  next  Session  of 
this  Convention,  to  agree  upon  a  time  when  this  Form  of  Government  shall  take 
place,  without  returning  the  same  again  to  the  people:  PROVIDED,  That  two- 
thirds  of  the  male  Inhabitants  of  the  age  of  twenty-one  years  and  upwards,  voting 
in  the  several  town  and  plantation  meetings,  shall  agree  to  the  same,  or  the  Con- 
vention shall  conform  it  to  the  sentiments  of  two-thirds  of  the  People  as  aforesaid. 

RESOLVED,  That  the  Towns  and  Plantations  thro'  this  State,  have  a  right 
to  choose  other  Delegates,  instead  of  the  present  members  to  meet  in  Convention 
on  the  first  Wednesday  in  June  next,  if  they  see  fit." 

At  the  same  time  the  convention,  through  its  officers,  issued  an 
address  to  the  people,  explaining  and  defending  the  product  of  their 
labors  and  suggesting  rather  than  advocating  its  adoption.  Indeed, 
this  address  has  been  characterized  as  "so  conciliatory  as  to  be 
almost  ludicrous."  2  The  opening  paragraphs  will  sufficiently  indi- 
cate its  tone:3  — 

1  Journal  of  First  Constitutional  Convention  (Boston,  1832),  168,  169. 

2  Harding,   "The  Federal  Constitution  in  Massachusetts"   (New  York,    1896). 
Harvard  Historical  Studies,  II,  6. 

3  Journal  of  First  Constitutional  Convention  (Boston,  1832),  Appendix,  216. 


INSTRUMENTS   OF  THE   REVOLUTIONARY   ERA  175 

"FRIENDS  AND  COUNTRYMEN: 

Having  had  your  Appointment  and  Instruction,  we  have  undertaken  the 
arduous  Task  of  preparing  a  civil  Constitution  for  the  People  of  the  Massachusetts 
Bay;  and  we  now  submit  it  to  your  candid  Consideration.  It  is  your  Interest 
to  revise  it  with  the  greatest  Care  and  Circumspection,  and  it  is  your  undoubted 
Right,  either  to  propose  such  Alterations  and  Amendments  as  you  shall  judge 
proper,  or,  to  give  it  your  own  Sanction  in  its  present  Form,  or,  totally  to  reject  it. 

In  Framing  a  Constitution,  to  be  adapted  as  far  as  possible  to  the  Circum- 
stances of  Posterity  yet  unborn,  you  will  conceive  it  to  be  exceedingly  difficult,  if 
not  impracticable,  to  succeed  in  every  part  of  it  to  the  full  Satisfaction  of  all.  Could 
the  whole  Body  of  the  People  have  Convened  for  the  same  Purpose,  there  might 
have  been  equal  reason  to  conclude,  that  a  perfect  Unanimity  of  Sentiments  would 
have  been  an  Object  not  to  be  obtained.  In  a  Business  so  universally  interesting, 
we  have  endeavored  to  act  as  became  the  Representatives  of  a  wise,  understanding 
and  free  People;  and  as  we  have  Reason  to  believe  you  would  yourselves  have 
done,  we  have  opened  our  Sentiments  to  each  other  with  Candor,  and  made  such 
mutual  Concessions  as  we  could  consistently,  and  without  marring  the  only  Plan 
which  in  our  most  mature  Judgment  we  can  at  present  offer  to  you." 

Thus  the  constitution  was  placed  before  the  sovereign  people. 
But  the  sovereign  was  slow  and  not  altogether  clear  in  expressing  his 
will,  though  suggestions  and  proposals  were  made  "upon  all  matters 
of  theory  and  practice  from  the  beginning  to  the  end  of  the  political 
philosophy  of  the  time."  1  When,  after  a  three  months'  recess,  the 
convention  reassembled  in  June,  the  committee  appointed  to  revise 
and  arrange  the  returns  reported : 2  — 

"That  one  hundred  and  forty-seven  towns  have  made  returns.  That  they 
have  examined  seventy  six  of  them;  that  in  those  returns  they  find  the  number 
of  persons  present  and  voting  to  be  5,776;  That  the  number  in  favour  (of)  the 
Constitution  without  amendments,  and  of  such  Constitution  as  two  thirds  of 
the  persons  voting  thro'  the  State  shall  agree  to,  or  the  Convention  shall  form 
agreeably  to  the  sentiments  of  two  thirds,  even  though  the  amendments  proposed 
should  not  be  obtained,  they  find  to  be  4,564,  but  that  several  towns  have  returned 
their  acceptance  of  the  Constitution  with  certain  amendments3  and  have  not 

1  Gushing,  "Transition  from  Provincial  to  Commonwealth  Government,"  Colum- 
bia University  Studies,  VII,  264  et  seq.,  where  many  interesting  examples  of  these  are 
given.     Cf .  also  Jameson's  "  Introduction  to  the  Study  of  the  Constitutional  and  Politi- 
cal History  of  the  States,"  Johns  Hopkins  University  Studies,  IV,  207-209. 

2  Journal  of  First  Constitutional  Convention  (Boston,  1832),  172. 

3  Boston  was  one  of  the  towns  which  "expressed  a  desire  for  several  alterations 
and  instructed  their  delegates  accordingly."  —  Bradford,  "History  of  Massachusetts," 
II,  186. 

Weston  "  voted  to  accept  the  Constitution  and  Form  of  Government  as  it  now 
stands,  but  it  is  our  opinion  that  it  should  be  revised  within  ten  years  and  made  certain. 
Yeas  54,  nays  20."  Minutes  of  Town  Clerk,  reprinted,  Referendum  News,  I,  25. 


1 76  THE   PEOPLE'S   LAW 

determined  whether  they  would  accept  it  in  case  their  proposed  amendments  do 
not  obtain,  upon  which  they  desire  the  opinion  of  the  Convention,  whether  they 
may  take  the  sense  of  those  towns  from  their  delegates ;  and  finally,  that  they  have 
not  as  yet  entered  into  the  merits  of  the  objections  made,  or  amendments  proposed ; 
deeming  it  more  eligible  first  to  go  through  the  returns  in  the  manner  aforesaid." 

An  addition  of  twelve  was  thereupon  made  to  this  committee  in 
order  that  the  returns  as  to  each  article  might  be  tabulated.  On 
the  following  day  the  committee  reported :  *  - 

"That  174  towns  have  made  returns;  that  in  order  to  collect  the  true  sense  of 
the  People,  the  Committee  have  been  obliged  to  make  a  column  for  every  article, 
and  another  for  the  amendment  proposed,  with  the  numbers  for  and  against  the 
same ;  that  they  have  not  been  able  to  complete  any  one  county,  because  there  are 
towns  in  each  that  have,  as  yet,  not  made  returns." 

To  this  report  the  committee  attached  a  diagram  showing  the 
manner  in  which  the  returns  were  being  tabulated.  On  June  13 
the  committee  asked  the  convention  to  limit  the  time  for  receiving 
returns.2 

This  limit  was  finally  fixed  at  the  morning  of  the  next  day,  and 
the  same  afternoon  the  committee  on  returns  made  its  general  re- 
port.3 On  the  1 5th  the  convention  voted  to  consider  the  constitu- 
tion seriatim,  which  was  done  as  follows : 4  — 

"The  several  articles  in  the  Declaration  of  Rights  and  Frame  of  Govern- 
ment were  then  read  separately,  and  the  following  question  put  upon  each,  viz. : 
Is  it  your  opinion  that  the  people  have  accepted  this  article  ?  Which,  upon  every 
individual  article,  passed  in  the  affirmative  by  a  very  great  majority." 

On  June  16  the  convention  adjourned  sine  die,  having  first 5 
declared 

"  The  said  Form  to  be  the  Constitution  of  Government  established  by  and 
for  the  Inhabitants  of  the  State  of  Massachusetts  Bay." 

The  Instrument 

Thus  came  into  being  an  instrument  which  has  been  the  subject 
of  almost  universal  encomium.  Borgeaud 6  calls  it  "the  most  perfect 
expression  of  the  American  theory,  as  understood  at  the  close  of  the 

1  Journal  of  First  Constitutional  Convention,  175.  2  Id.  178. 

3  Id.  179.  4  Id.  180.  5  Id.  185. 

8  "Adoption  and  Amendment  of  Constitutions"  (Hazen's  Trans.,  New  York, 
1895),  18. 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  177 

Revolution."  Though  not  the  earliest  of  the  American  constitutions, 
it  is  to-day  the  oldest.1  While  all  similar  instruments  of  its  time 
have  been  swept  away  and  superseded  by  later  constitutions,  it  still 
survives,  with  prestige  unimpaired,  supplemented  only  by  amend- 
ments which  time  has  made  necessary.2  Then,  too,  this  venerable 
charter  has  been  a  model,  both  in  form  and  substance,  for  all 
subsequent  constitution-makers.  Borgeaud  refers  to  it  as  "having 
served  as  the  principal  model  of  the  Federal  Convention  of  1787, 
and  later  of  the  assemblies  called  to  revise  the  first  state  constitu- 
tions." 3  The  historian  of  New  Hampshire,  writing  shortly  after  its 
adoption,  speaks  of  the  superior  advantage  enjoyed  by  the  third  con- 
stitutional convention  of  that  state,  "the  neighboring  state  of  Massa- 
chusetts having  digested  and  adopted  a  constitution,  which  was 
supposed  to  be  an  improvement  upon  all  which  had  been  framed  in 
America."  4  We  shall  see  later  how  it  afforded  a  model  for  Maine's 
constitution.5 

When,  a  decade  later,  amid  the  turmoil  of  the  French  Revolution, 
its  leaders  began  to  think  of  written  constitutions,  they  turned  to 
this  ripened  product  of  the  statecraft  of  New  England  and  borrowed 
its  ideas.  Borgeaud 6  speaks  of  the  declaration  of  the  Rights  of 
Man  of  1789  as  having  been  "made  under  the  spell  of  American 
ideas,"  and  says  that  the  "personal  participation"  feature  of  that 
instrument  "was  the  Massachusetts  system,  with  whose  popularly 
ratified  constitution  the  assembly  was  familiar,  and  to  whose  influ- 
ence the  cahiers  more  than  once  bore  witness." 

And  not  only  in  the  method  of  adoption  but  in  the  substance  also 
this  instrument  offered  some  original  features.  The  separation  of 
governmental  powers  into  executive,  legislative,  and  judicial,  though 

1  Thayer,  "Cases  on  Constitutional  Law"  (Cambridge,  1895),  I,  215. 

2  "  Its  excellence  has  been  attested  by  its  continuation  in  force  until  the  present 
time.     Though  amended  thirty-four  times,  the  changes  have  not  affected  the  principles 
on  which  the  plan  rests  but  are  chiefly  administrative  in  character."  —  Thorpe,  "Con- 
stitutional History  of  the  American  People"  (New  York,  1898),  I,  132. 

*  "Adoption  and  Amendment  of  Constitutions"  (Hazen's  Trans.,  New  York, 
1895),  18. 

4  Belknap,  "History  of  New  Hampshire"  (Boston,  1796),  II,  435.  Nearly 
forty  states  have  followed  Massachusetts  by  inserting  in  their  constitutions  the  dis- 
tributive clause  relating  to  the  three  powers  of  government. 

6  Post,  Chap.  XIII. 

8  "Adoption  and  Amendment  of  Constitutions"  (Hazen's  Trans.,  New  York, 
1895),  199,  200. 

N 


1 78  THE   PEOPLE'S   LAW 

in  theory  as  old  as  Aristotle,1  and  elaborated  by  Montesquieu,2  was 
first  enacted  into  law  in  the  American  constitutions  of  the  revolu- 
tionary period.  And  while  the  distributive  clause  appeared  in  several 
of  the  state  constitutions  adopted  prior  to  that  of  Massachusetts,3  it 
is  in  the  latter  that  it  finds  the  clearest  and  most  complete  expression. 
John  Adams,  the  author  of  the  instrument,  was  a  disciple  of  Har- 
rington, the  English  publicist  of  the  Commonwealth  period,4  who 
was  an  ardent  believer  in  the  doctrine  of  the  separation  of  powers, 
and  whose  very  language  appears  to  have  been  embodied  in  this 
Massachusetts  constitution.  Professor  Dwight,  speaking  of  Harring- 
ton's Oceana,  says : 5  — 

"Beginning  with  the  true  nature  of  government,  he  declared  it  to  be  an 
*  Empire  of  laws  and  not  of  men.'  This  had  been  asserted,  it  is  true,  by  philoso- 
phers of  antiquity,  but  it  had  been  forgotten  or  disowned.  He  reasserted  it  con- 
tinually, brought  it  into  notice,  and  made  it  the  corner-stone  of  his  system.  To 
this  may  probably  be  traced  the  famous  declaration  in  the  constitution  of  Massa- 
chusetts, Part  i,  Article  30: 

"  'In  the  government  of  this  commonwealth,  the  legislative  department  shall 
never  exercise  the  legislative  and  judicial  powers,  or  either  of  them  .  .  .  to  the 
end  it  may  be  a  government  of  laws  and  not  of  men.'  " 

This  constitution  was  thus  adopting  and  popularizing  the  best 
political  thought  of  the  English  race.  But  the  most  assured  title  to 
fame,  of  this  first  Massachusetts  constitution,  rests  upon  none  of 
these  features,  important  as  they  are.  It  deserves  to  be  longest  re- 
membered in  history  as  the  first  popular  American  state  constitution. 
It  was  desired,  inspired,  and  ratified  by  the  people,  and  framed  under 
their  watchful  eye  by  their  specially  chosen  servants.  As  its  author 
himself  wrote  while  it  was  in  preparation : 6  — 

"There  never  was  an  example  of  such  precautions  as  are  taken  by  this  wise 
and  jealous  people  in  the  formation  of  their  government.  None  was  ever  made 
so  perfectly  upon  the  principle  of  the  people's  rights  and  equality.  It  is  Locke, 
Sidney  and  Rousseau  and  De  Mably  reduced  to  practice,  in  the  first  instance. 
I  wish  every  step  of  their  progress  printed  and  preserved." 

1  "Politics"  (Jowett's  Trans.,  Oxford,  1885),  Bk.  IV,  14,  2;  Bk.  VI,  8. 

2  "Esprit  du  Lois"  (Nugent's  Trans.,  London,  1758),  Vol.  I,  Bk.  XI,  Chap.  VI. 

3  Bondy,  "The  Separation  of  Governmental  Powers"  (New  York,  1896),  Columbia 
University  Studies,  V,  No.  2,  19. 

4  See    Professor   Theodore   W.    Dwight's   instructive   article   on  "Harrington," 
Political  Science  Quarterly,  II,  i.     He  says  (3),  "Adams  was  perfectly  familiar  with 
Harrington's  Oceana,  and  much  influenced  by  its  teachings,  as  his  writings  will  show." 

•  Id.  18.  fl  "Works  of  John  Adams"  (Boston,  1851),  IV,  216. 


INSTRUMENTS   OF  THE   REVOLUTIONARY   ERA  179 

Truly,  this  was  a  constitution  "of  the  people,  by  the  people,  for 
the  people."  l  And  withal  it  was  a  perfectly  natural  product  of  political 
conditions.  Its  roots  lay  deep  in  the  soil  of  New  England  history,  and 
it  was  the  immediate  result  of  five  generations  of  civic  evolution. 
The  discipline  of  the  town  meeting,  the  popular  experience  in  direct 
legislation,  the  constant  struggle  for  the  exercise  of  the  right  of  self- 
government  —  were  all  summed  up  and  embodied  in  its  adoption. 
Thus  it  occupies  a  place  midway  in  our  constitutional  history.  Its 
direct  lineage  harks  back  a  century  and  a  half  to  the  beginning  of 
political  life  in  America,  and  its  posterity  reaches  forward  a  century 
and  a  quarter  to  our  own  day. 

1  The  development  of  this  thought  and  its  expression  forms  a  thread  in  the  web 
of  political  literature  which  appears  to  run  as  follows :  — 

"For  we  put  the  power  in  the  people."  —  William  Penn  (1676). 

"  All  power  is  a  trust ;  .  .  .  from  the  people  and  for  the  people  all  springs  and 
all  must  exist."  — Disraeli  (1826). 

"  The  people's  government,  made  for  the  people,  made  by  the  people  and  answer- 
able to  the  people."— Daniel  Webster  (1830). 

"  This  is  what  I  call  the  American  idea  ...  a  democracy  —  that  is  a  government 
of  all  the  people  by  all  the  people  for  all  the  people."  — Theodore  Parker  (1850). 

"  Government  of  the  people,  by  the  people,  for  the  people  shall  not  perish  from 
the  earth."  —  Lincoln  (1863). 


CHAPTER  XII 

INSTRUMENTS  OF  THE  REVOLUTIONARY  ERA  (Concluded) 

NEW   HAMPSHIRE 

A.     The  Articles  of  Confederation 

IN  New  Hampshire,  as  in  Massachusetts,  though  to  a  less  degree, 
the  acceptance  of  the  Articles  of  Confederation  was  made  the  occasion 
of  applying  the  principle  of  the  plebiscitum,  and  undoubtedly  pre- 
pared the  way  for  putting  in  vogue  the  plan  of  popular  ratification 
of  the  state's  constitution.  On  December  24,  1777,  the  New  Hamp- 
shire House  of  Representatives,  in  Committee  of  the  Whole,  took  up 
for  consideration  these  Articles  which  had  lately  been  transmitted 
from  the  Continental  Congress.  A  letter  had  also  been  received 
from  Henry  Laurens,  President  of  the  Congress,  urging  that  author- 
ity be  given  to  the  delegates  immediately  to  subscribe  the  Articles.1 
Nevertheless  the  committee  merely  agreed  to  recommend  "that  the 
Articles  of  Confederacy  be  printed  forthwith  &  Dispersed  to  ye  num- 
ber of  250."  2  On  December  27  it  was  — 

"  Voted,  That  the  following  words  be  printed  at  the  bottom  of  the  Articles 
of  Confederation,  and  before  the  vote  of  the  General  Court  relative  to  instructing 
the  Representatives,  viz: 

'The  foregoing  Articles  of  Confederation,  as  formed  by  the  Hon'ble,  the 
Continental  Congress,  are  printed  and  to  be  dispersed  throughout  this  State, 
That  every  person  may  give  their  sentiments  thereon,  and  the  following  vote  of 
the  General  Assembly  of  the  State  of  New  Hampshire  is  also  published  for  the 
same  purpose.' "  3 

In  this  we  behold  a  near  approach  to  a  plebiscitum.  In  spite  of 
the  gravity  of  the  situation  and  the  anxiety  of  the  Continental  Con- 
gress, the  New  Hampshire  legislators  were  not  willing  to  ratify  these 

1  See  this  letter  printed  in  New  Hampshire  State  Papers,  VIII,  754,  755.     A  copy 
seems  to  have  been  sent  to  each  state. 

2  Id.  746.  •  Id.  758. 

1 80 


INSTRUMENTS   OF   THE   REVOLUTIONARY   ERA  l8l 

articles  at  once,  but  insisted  on  consulting  the  people.  This,  it  will 
be  remembered,  was  the  course  adopted  in  Massachusetts,  and  it  is 
significant  that  the  voting  on  these  articles  was  at  this  time  in  progress 
in  the  latter  colony.  In  New  Hampshire  the  reference  of  the  articles 
to  the  electors  was  not  so  complete  or  explicit  as  in  Massachusetts, 
but  the  former  seems  to  have  been  suggested  by  the  latter.  We 
shall  see  more  of  this  intercolonial  influence  as  we  proceed. 

It  does  not  appear  how  extensively  the  electorate  of  New  Hamp- 
shire responded  to  this  referendum,  for  we  have  not  the  wealth  of 
material  for  that  colony  which  is  afforded  by  the  town  resolves,  pre- 
served in  the  Massachusetts  archives.  But  ample  time  was  allowed 
for  the  New  Hampshire  electors  to  "give  their  sentiment"  regarding 
the  Articles  of  Confederation,  for  it  was  nearly  two  months  before 
these  again  came  before  the  Provincial  Congress. 

On  February  24,  1778,  both  houses  considered  them  in  joint 
committee  of  the  whole  and,  though  the  eighth  article  relating  to  the 
revenue  of  the  Confederation  was  debated  at  length,  all  were  finally 
adopted.1  Evidently  there  had  been  no  serious  objections  from  the 
voters. 

The  opposition  to  this  eighth  article  did  not  end  in  New  Hamp- 
shire. Five  years  later  the  Continental  Congress  itself  agreed  to  an 
amendment  of  this  article  which  it  transmitted  to  the  states  for  rati- 
fication. When  received  by  the  General  Assembly  of  New  Hamp- 
shire, that  body,  on  June  20,  1783,  issued  an  address  to  the  people, 
reciting  the  proposed  amendment,  embodying  the  reasons  advanced 
by  the  Continental  Congress,  and  closing  with  this  significant  state- 
ment : 2  — 

"The  General  Assembly  having  maturely  considered  the  alteration  proposed 
&  recommended  to  be  made,  are  fully  convinced  of  the  expediency  and  utility 
of  the  measure ;  but  at  the  same  time  wish  to  be  instructed  and  impowered  par- 
ticularly by  their  constituents  in  a  matter  of  such  importance  as  the  alteration  of 
an  Article  of  the  Confederation :  And,  therefore  recommend  to  the  Selectmen  of 
the  several  Towns  and  places  in  this  State  as  soon  as  may  be,  to  call  meetings  for 
the  purpose  of  instructing  and  impowering  their  representatives,  with  respect 
to  the  proposed  alteration." 

How  much  more  definite  and  explicit  is  this  than  the  first  refer- 
ence to  the  people  is  apparent  from  the  most  casual  comparison.  The 
doctrine  of  popular  ratification  had  made  rapid  strides  in  five  years. 

1  State  Papers,  VIII,  773,  774.  3  Id.  981,  982. 


1 82  THE  PEOPLE'S   LAW 


B.     The  Movement  for  a  Permanent  Constitution 

As  we  have  seen,  the  form  of  government  which  had  been  adopted 
in  New  Hampshire  in  1776  did  not  purport  to  be  more  than  tempo- 
rary. Its  framers  hoped  merely  to  tide  over  the  interval  until  "a 
reconciliation  between  us  and  our  parent  state  can  be  effected."  1  It 
is  not  strange,  therefore,  that,  under  the  strain  of  war,  serious  defects 
were  found  in  this  brief  and  hastily  prepared  constitution.  "One 
was  the  want  of  an  executive  branch  of  government."  2  Another  was 
its  autocratic  character,3  and  the  arbitrary  power  it  conferred  upon 
the  legislature.  These  and  other  reasons  led  to  steps  toward  a  more 
permanent  and  satisfactory  plan  of  government. 

At  the  first  session  of  the  House  of  Representatives  on  December 
27,  1777,  that  body  adopted  a  resolution  offered  by  Thomas  Odiorne 
of  Exeter :  — 

"  That  it  be  recommended  to  Towns,  Parishes  &  places  in  this  State,  if  they 
see  fit,  to  instruct  their  Representatives  at  the  next  session,  to  appoint  &  call  a 
full  and  free  Representation  of  all  the  people  of  this  State  to  meet  in  Convention 
at  such  time  &  Place  as  shall  be  appointed  by  the  General  Assembly,  for  the 
sole  purpose  of  framing  &  laying  a  permanent  plan  or  system  for  the  future 
government  of  this  state."  4 

No  action  regarding  this  resolution  seems  to  have  been  taken  by 
the  council  during  that  session,  but  at  the  ensuing  one,  on  February 
25,  1778,  both  houses,  in  pursuance  of  a  previous  arrangement,  met 
in  a  joint  committee  of  the  whole  to  consider  the  question  of  calling 
a  convention.  The  Journal  discloses  that :  — 

"After  some  time  spent  thereon  the  Committee  agreed  to  report: 
That  a  full  and  free  representation  of  all  the  People  of  this  State  be  called 
as  soon  as  conveniently  may  be,  for  said  purpose ;  That  the  Convention  be  on  the 
second  Wednesday  in  June  next ;  That  they  meet  at  Concord  in  this  State ;  That 
each  Town,  Parish  or  Precinct  sending  a  member  or  members  to  said  Convention 
pay  their  own  members  for  their  time  &  expense;  That  when  the  said  Con- 
vention have  formed  such  Plan  of  Government,  they  lay  the  same  before  their 
constituents  for  their  approbation,  before  the  same  shall  take  effect ;  That  such 
plan  shall  not  take  effect  until  three  quarters  of  the  people  of  this  State  shall  consent 
thereto."* 

1  Ante,  140. 

2  Belknap,  "History  of  New  Hampshire"  (Boston,  1791),  II,  401. 

3  Thorpe,  "Constitutional  History  of  the  American  People"  (New  York,  1898), 

I,  US- 

4  New  Hampshire  State  Papers  (Concord,  1874),  VIII,  757,  758.  6  Id.  774. 


INSTRUMENTS   OF  THE   REVOLUTIONARY   ERA  183 

Here,  then,  we  find  the  doctrine  of  popular  ratification  in  its  com- 
plete form  introduced  into  the  public  law  of  New  Hampshire.  What 
had  caused  its  introduction  at  this  time  when  only  two  years  before, 
at  the  framing  of  the  original  constitution,  the  doctrine  seems  to  have 
been  ignored  ?  The  answer  to  this  must  probably  again  be  sought 
in  the  example  of  Massachusetts.  The  connection  between  the  two 
colonies  had  always  been  close.  During  part  of  the  seventeenth  cen- 
tury they  had  been  united  in  one  government.1  It  was  but  natural 
that  the  younger  and  weaker  colony  should  become  the  political 
disciple  of  the  older  and  more  highly  developed  one,  and  should 
draw  from  the  latter's  fund  of  experience.  And  it  was  just  at  this 
time,  as  we  have  seen,  that  Massachusetts  was  passing  through  one 
of  the  most  fruitful  periods  of  her  civic  evolution.  Her  people,  in 
response  to  a  request  from  the  General  Court,  had,  during  the  pre- 
ceding months,  been  expressing  themselves  in  their  town  meetings  on 
the  question  of  calling  a  convention.  And  at  this  very  tune,  when 
the  same  subject  was  before  the  committee  of  the  whole  of  the  New 
Hampshire  Provincial  Congress,  the  Massachusetts  General  Court 
was  debating  the  draft  of  the  proposed  constitution  of  1778,  which, 
on  February  29,  it  submitted  to  the  towns  "for  their  approbation  or 
disapprobation,"  in  language  strikingly  similar  to  that  used  in  the 
New  Hampshire  report  three  days  earlier.  We  are  not  without  data 
as  to  actual  communication  between  the  two  bodies  meeting  simul- 
taneously at  Exeter  and  Boston,2  and  the  coincidences  in  their  pro- 
ceedings can  hardly  have  been  altogether  accidental.  There  is  little 
reason  to  doubt  that  popular  ratification  in  New  Hampshire  at  that 
particular  time  was  one  of  the  results  of  the  object  lessons  then  being 
presented  by  Massachusetts.  But  if  there  was  imitation  hi  this 
feature,  there  was  departure  in  another.  For  on  the  same  day  that 
the  report  above  quoted  was  agreed  to  by  the  committee  of  the  whole 
of  the  New  Hampshire  legislature,  it  further  agreed  to  report  — 

"that  the  foregoing  articles  of  Direction  be  not  recommendatory  but  Directory, 
and  that  Precepts  issue  to  each  Town,  Parish  &  District  in  this  State  if  they  see 
fit  to  send  one  or  more  members  to  the  said  Convention  saving  to  any  two  or 
more  Towns,  Parishes  or  Districts,  if  they  see  fit  to  join  together  in  electing  & 
sending  one  member  to  represent  them  in  said  Convention. "  3 

1  See  Mr.  Eaton's  article,  "The  Right  to  Local  Self -Government,"  Harvard  Law 
Review,  XIV,  137. 

3  New  Hampshire  State  Papers  (Concord,  1874),  VIII,  857.  8  Id.  774. 


1 84  THE  PEOPLE'S  LAW 

This,  it  will  be  seen,  is  very  different  from  the  humble,  not  to  say 
obsequious,  tone  adopted  by  the  General  Court  and  Convention  of 
Massachusetts.  But  the  New  Hampshire  legislators  were  soon  to 
learn  that  their  constituents  would  not  be  forced. 

On  the  following  day,  February  26,  the  House,  in  pursuance  of 
these  reports,  adopted  the  following :  — 

"WHEREAS,  the  present  situation  of  affairs  in  this  State  makes  it  necessary 
that  a  full  &  free  Representation  of  the  Inhabitants  thereof  should  meet  in  Con- 
vention for  the  sole  purpose  of  forming  and  laying  a  permanent  plan  or  system 
of  Government  for  the  future  Happiness  and  well-being  of  the  good  people  of  this 
State  &  this  House  having  received  Instructions  from  a  considerable  part  of  their 
Constituents  for  that  purpose:  Therefore, 

Voted  and  Resolved,  that  the  Hon'ble,  the  President  of  the  Council  issue  to 
every  Town,  Parish  &  District  within  the  State  a  Precept  recommending  to  them 
to  elect  and  choose  one  or  more  persons  as  they  shall  judge  expedient,  to  convene 
at  Concord  in  said  State,  on  the  tenth  day  of  June  next  for  the  purpose  aforesaid, 
saving  to  the  small  Towns  liberty  to  join  two  or  more  together,  if  they  see  fit  to 
elect  &  send  one  person  to  represent  them  in  said  Convention. 

And  such  system  or  form  of  Government  as  may  be  agreed  upon  by  Such 
Convention  being  printed  and  sent  to  each  &  every  Town,  Parish  and  District 
in  this  State  for  the  approbation  of  the  People,  which  system  or  form  of  Govern- 
ment, being  approved  by  three-fourth  parts  of  the  Inhabitants  of  this  State  in 
their  respective  Town  meetings  legally  called  for  that  purpose  and  a  return  of 
such  approbation  being  made  to  said  Convention  &  Confirmed  by  them,  shall 
remain  as  a  permanent  system  or  Form  of  Government  of  the  State,  and  not  other- 
wise; and  that  the  charge  and  expense  of  each  member  of  Such  Convention  be 
defrayed  by  their  respective  electors."  1 

C.    Work  of  the  First  Convention 

The  convention  met  at  the  time  and  place  appointed  and  entered 
upon  its  task  of  framing  a  constitution.2  The  work  was  not  com- 
pleted, however,  until  almost  a  year  later  when  an  instrument  was 
agreed  upon  whose  closing  paragraph  was  as  follows :  — 

"The  General  Court  shall  have  no  power  to  alter  any  part  of  this  constitu- 
tion; but  in  case  they  should  concur  in  any  proposed  alteration,  amendment  or 
addition,  the  same,  being  agreed  to  by  a  majority  of  the  people,  shall  become 
valid."3 

1  New  Hampshire  State  Papers  (Concord,  1874),  VIII,  775,  776. 

3  See  for  its  text  Collections  New  Hampshire  Historical  Society  (Concord,  1834), 
IV,  154  et  seq.;  also  New  Hampshire  Town  Papers  (Concord,  1875),  IX,  837-841. 
The  editor  of  the  last  named  volume  says  (834) :  "  It  is  much  to  be  regretted  that  the 
Journal  of  that  Convention  cannot  anywhere  be  found."  3  Id.  841. 


INSTRUMENTS   OF   THE   REVOLUTIONARY  ERA  185 

At  the  same  time  the  convention 

"Voted,  that  the  foregoing  Bill  of  Rights,  and  Plan  of  Government,  be  printed, 
and  dispersed  throughout  this  State,  for  the  people  thereof,  to  give  their  opinion 
thereon. 

Voted,  that  Colonel  Thornton  and  Colonel  Bartlett,  be  a  committee  to  get 
this  plan  of  government  printed,  and  transmit  two  or  more  copies  of  the  same 
to  each  and  every  town,  parish  and  place  in  this  State,  to  which  precepts  for  this 
convention  were  sent,  and  publish  the  same  in  the  New  Hampshire  newspapers. 

Voted,  That  the  selectmen  of  the  several  towns,  parishes  and  districts  in 
this  State,  upon  the  receipt  of  the  same,  are  desired  to  notify  and  warn  the  legal 
inhabitants  paying  taxes  in  such  town,  parish  or  place,  to  meet  at  some  suitable 
place  therein,  giving  them  at  least  fifteen  days  notice,  for  the  purpose  of  taking 
said  plan  under  consideration ;  and  make  return  of  the  number  of  voters  present 
at  such  meeting,  and  how  many  voted  for  receiving  said  plan,  and  how  many  for 
rejecting  the  same,  unto  this  convention  at  Concord,  in  this  State,  on  the  third 
Tuesday  in  September  next."1 

But  the  instrument  thus  drafted  and  sent  to  the  people  is  de- 
scribed as  "so  deficient  ...  in  its  principles,  and  so  inadequate  in 
its  provisions,  that  being  proposed  to  the  people  in  their  town  meet- 
ings, it  was  rejected."  2 

D.   The  Second  Convention 

The  failure  of  this  attempt  did  not,  however,  discourage  the  advo- 
cates of  a  permanent  constitution.  In  March,  1781,  the  House  of 
Representatives  voted  in  favor  of  a  second  convention  "to  settle  a 
Form  of  Government,"  3  and  in  the  following  month  a  joint  resolu- 
tion was  passed  providing  for  a  convention  to  meet  at  Concord  in 
June.4  The  body  which  assembled  5  in  pursuance  of  this  resolution 
framed  a  new  instrument,6  and  also  prepared  an  address7  to  the 
people  in  its  behalf.  An  original  and  significant  provision  of  the 
new  constitution  was  the  following:  — 

"To  preserve  an  effectual  adherence  to  the  principles  of  the  Constitution, 
and  to  correct  any  violation  thereof;  as  well  as  to  make  such  alterations  therein, 
as  from  experience  may  be  found  necessary,  the  General  Court  shall  after  the 

1  New  Hampshire  Town  Papers,  edited  by  Bouton  (Concord,  1875),  IX,  841,  842. 

2  Belknap,  "History  of  New  Hampshire"  (Boston,  1791),  II,  434,  435. 

3  New  Hampshire  Town  Papers  (Concord,  1875),  IX,  842. 

4  Id.     Cf.  New  Hampshire  State  Papers  (Concord,  1874,)  VIII,  894-897. 

6  "The  Journal  of  that  Convention  has  not  been  found."  New  Hampshire  Town 
Papers,  IX,  842. 

6  See  Id.  852  et  seq.  for  its  text.  7  Id.  845  et  seq. 


1 86  THE   PEOPLED   LAW 

expiration  of  seven  years  from  the  time  this  Constitution  shall  take  effect  issue 
their  precepts  to  the  selectmen  of  the  several  towns  and  to  the  assessors  of  unin- 
corporated places  within  this  State,  directing  them  to  convene  the  qualified  voters 
therein,  for  the  purpose  of  collecting  their  sentiments  on  the  necessity  or  expedi- 
ency of  revising  the  constitution  in  order  for  amendments ;  And  if  it  shall  appear 
by  the  returns  made,  that  two  thirds  of  the  qualified  voters  through  the  State  who 
shall  assemble  and  vote  in  consequence  of  said  precepts,  are  in  favor  of  such  re- 
vision and  amendments,  the  General  Court  shall  issue  precepts,  or  direct  them 
to  be  issued  from  the  secretary's  office,  to  the  several  towns  and  unincorporated 
places  to  elect  delegates  to  meet  in  Convention  for  the  purpose  aforesaid." l 

Upon  completion  of  the  work  it  was  — 

"RESOLVED,  that  this  convention  be  adjourned  to  the  fourth  Wednesday  of 
January  next,  to  meet  at  Concord;  and  that  seven  hundred  copies  of  the  Plan 
of  Government,  which  is  agreed  upon,  to  be  printed,  including  such  as  shall  be 
ordered  to  each  member  of  the  General  Court  and  of  the  Convention,  be  sent  to 
the  selectmen  of  each  town,  and  assessors  of  each  plantation,  under  the  direction 
of  the  Committee  appointed  for  that  purpose  and  that  the  selectmen  and  assessors 
be  requested  as  soon  as  may  be  to  lay  the  same  before  the  Inhabitants  of  their 
respective  towns  and  plantations.  And  if  the  major  part  of  the  inhabitants  of 
said  towns  and  plantations  disapprove  of  any  particular  part  of  the  same,  that 
they  be  desired  to  state  their  objections  distinctly  and  the  reasons  therefor.  And 
the  selectmen  and  assessors  are  desired  to  transmit  the  same  to  the  Convention  on 
the  fourth  Wednesday  of  January  aforesaid,  or  to  the  Secretary  of  the  Convention 
before  then,  in  order  for  the  revision  and  consideration  of  the  convention  at  the 
adjournment.  .  .  .  And  if  there  should  not  appear  to  be  two  thirds  of  the  people 
in  favor  thereof,  that  the  Convention  may  alter  it  in  such  manner  as  may  be  most 
agreeable  to  the  sentiments  of  two  thirds  of  the  voters  throughout  this  state."2 

Upon  reassembling  at  the  appointed  time  it  was  found  that  the 
work  of  this  convention  had  likewise  failed  to  receive  the  popular 
approval.3  The  convention  thereupon  again  adjourned  until  August, 
when  a  second  draft  was  agreed  upon,4  another  address  issued,5  and 
another  adjournment  taken  to  await  the  action  of  the  voters.  The 
result  was  a  rejection  of  this  second  instrument  also,  and  the  conven- 
tion reassembled  in  December,  1782,  and  framed  a  third  plan  of 
government.6  This  time  the  legislature  took  part  in  the  proceed- 
ings and  issued  an  address  to  the  people  declaring  that  its 
members 

1  New  Hampshire  Town  Papers  (Concord,  1875),  IX,  876,  877. 
3  Id.  877.  4  See  Id.  882  et  seq.  for  text. 

3  Id.  6  Id.  877  et  seq. 

6  See  Id.  896  et  seq.  for  text.  The  editor  suggests  that  the  Bill  of  Rights  "virtually 
and  in  effect  abolished  slavery  as  it  existed  in  New  Hampshire." 


INSTRUMENTS   OF   THE    REVOLUTIONARY  ERA  187 

"while  fully  convinced  of  the  Utility  &  necessity  of  continuing  the  present  Gov- 
ernment .  .  .  are  deeply  impressed  with  a  sense  of  the  necessity  and  importance 
of  having  a  free  &  permanent  government  established  in  this  State,  and  cannot 
omit  this  opportunity  to  recommend  to  their  constituents  a  more  particular  &  seri- 
ous attention  to  an  object  so  essential  to  the  Security  and  happiness  of  themselves 
and  posterity.  That  the  citizens  of  this  State  would  in  future  be  more  general 
and  explicit  in  their  returns  concerning  a  matter  of  such  magnitude."  l 

This  sounds  much  like  a  rebuke ;  but  the  electors  do  not  seem  to 
have  resented  it.  For  not  only  was  the  old  form  of  government  con- 
tinued "by  the  votes  of  the  people  in  their  town  meetings,"  2  but  this 
third  attempt  of  the  convention  was  successful.  Its  labors  when 
submitted  this  time  were  at  last  approved,  and  on  June  2,  1784,  the 
first  popular  constitution  of  New  Hampshire  was  proclaimed  in  force. 

We  may  now  pause  to  recapitulate  the  steps  taken  during  the 
revolutionary  era  toward  popular  ratification.  The  first  formal  pro- 
posal to  apply  it  to  a  state  constitution  was  made  by  Jefferson  in 
Virginia,  early  in  June,  1776.  On  the  i4th  of  the  same  month,  the 
first  formal  popular  demand  for  submission  came  from  the  "Me- 
chanicks  in  Union"  of  New  York.  On  November  i  of  the  same 
year,  the  first  popular  demand  in  the  South  came  from  the  people  of 
Mecklenburg  County,  North  Carolina.  In  the  following  year  the 
first  formal  consultation  of  the  people  with  reference  to  a  state  con- 
stitution took  place  in  Massachusetts,  and  in  the  same  state  on  Feb- 
ruary 28, 1778,  occurred  the  submission  to  the  people  of  a  proposed 
state  constitution,  while  the  first  actual  popular  ratification  followed 
during  the  period  from  March  to  June,  1780. 

1  New  Hampshire  State  Papers  (Concord,  1874),  VIII,  970. 

2  Belknap,  "History  of  New  Hampshire"  (Boston,  1791),  II,  438. 


CHAPTER  XIII 

POPULAR  RATIFICATION  EXTENDED  THROUGHOUT  NEW  ENGLAND 
A.  New  Hampshire 

i.     The  Federal  Constitution 

THE  growth  of  popular  constitution-making,  during  this  period, 
was  not  confined  merely  to  those  instruments  which  were  framed 
for  the  individual  states.  We  have  seen  how  the  Articles  of  Con- 
federation were  brought  before  the  people  of  Massachusetts  and  New 
Hampshire.  Something  of  the  same  sort  was  done  in  a  few  of  the 
states  with  reference  to  the  Federal  Constitution. 

The  New  Hampshire  Convention  "for  the  Investigation,  Discus- 
sion and  Decision"  of  this  instrument,  met  at  Exeter,  February  13, 
I788.1  That  the  question  of  its  adoption  was  not  formally  referred 
to  the  people  seems  to  have  been  largely  due  to  the  fact  that  the 
latter  considered  it  already  before  them.  Thus  a  town  meeting  of 
Warner,  held  prior  to  the  assembling  of  the  convention,  "voted  not 
to  Except  (sic)  the  new  Constitution."  2  In  Dunstable  a  similar  vote 
was  taken  and  a  committee  appointed  to  draft  instructions  to  the 
delegates,  and  a  recital  of  objections  was  prepared  by  it  and  for- 
warded to  the  convention.3  In  Amherst  the  delegate  was  instructed 
to  oppose  ratification,4  and  in  New  Ipswich  the  question  of  accepting 
the  constitution  was  the  one  upon  which  the  choice  of  a  delegate 
turned.5  The  electorate  of  New  Hampshire  was  alive  to  the  im- 
portance of  the  pending  question. 

"While  the  long  winter  intercepted  the  labors  of  husbandry,"  says  Bancroft,6 
"the  firesides  of  the  freeholders  in  its  hundreds  of  townships  became  the  scene 

1  See  Walker,  "History  of  the  New  Hampshire  Convention"  (Boston,  1888),  6. 

2  Harriman,  "History  of  Warner,"  253.  4  Secomb,  "History  of  Amherst,"  860. 

3  Fox,  "History  of  Dunstable,"  188.  6  "History  of  New  Ipswich,"  116. 
8  "History  of  the  Constitution"  (6th  Ed.,  New  York,  1889),  II,  318. 

188 


POPULAR   RATIFICATION   IN   NEW  ENGLAND  189 

for  discussing  the  merits  of  the  federal  Constitution  with  the  delegates  of  their 
choice  and  with  one  another." 

It  was  on  this  account  that  the  Exeter  convention  took  a  recess. 
A  majority  of  them  had  come  instructed  against  ratification.  In  the 
course  of  their  debates  and  deliberations  many  had  found  reason  to 
change  their  views,  but  before  they  would  act  on  their  new  opinions 
they  insisted  upon  again  consulting  their  constituents.1  An  adjourn- 
ment was  taken  for  nearly  four  months,  and  the  delegates  were  thus 
enabled  to  refer  the  question  once  more  informally  to  the  people  of 
their  respective  towns.2  It  was  not  until  this  was  done  and  a  change 
of  popular  sentiment  had  been  indicated,  that  the  Federal  Constitu- 
tion was  ratified  in  New  Hampshire.  And  along  with  ratification 
came  a  suggestion  of  amendments  and  alterations  to  meet  the  objec- 
tions raised  by  the  people.3 

2.     TJie  Constitution  0/1793 

The  state  constitution  adopted  in  1784,  though  intended  to  be 
"permanent"  and  evolved  at  such  cost  of  time  and  travail,  was  not 
destined  long  to  endure.  At  the  end  of  the  first  seven  years  when, 
pursuant  to  its  provision,  the  question  was  submitted,  the  people  in 
their  town  meetings  asked  for  another  convention  to  frame  amend- 
ments, and  such  a  body  met  accordingly  at  Concord  on  September  7, 
i7gi.4  One  of  its  first  acts  was  the  appointment  of  a  committee 
consisting  of  two  from  each  county  to  draft  constitutional  amend- 
ments for  submission  to  the  people.  The  labors  of  this  committee 
were  performed  during  a  recess  of  the  convention  which  was  mean- 
while taken  until  February,  1792.  Upon  reassembling,  seventy-two 
of  the  amendments  thus  prepared  were  submitted,  but  of  these  only 
forty-six  were  ratified  by  the  voters.  And  though  by  submitting 
separately  these  proposals  the  members  of  the  convention  had  in- 
tended to  obviate  the  necessity  of  a  further  session,  it  was  found  that 
by  reason  of  the  partial  adoption  and  the  conflict  between  the  amend- 
ments and  the  old  constitution  such  a  session  was  necessary.  The 
convention  therefore  again  reassembled  on  September  5,  1792,  and 

1  Walker,  "History  of  the  New  Hampshire  Convention"  (Boston,  1888),  29. 

2  Id.  Chap.  IV.  3  Id.  Chap.  VI. 

4  See  an  account  of  this  convention  in  an  address  by  Hon.  William  Plumer  before 
the  New  Hampshire  Historical  Society,  June  16,  1853,  printed  in  The  Historical  Maga- 
zine (Morrisania,  New  York,  1868),  N.  S.,  IV,  172,  176. 


1 90  THE  PEOPLE'S   LAW 

framed  a  new  constitution.  Profiting  by  the  lessons  of  many  failures, 
as  well  as  by  the  experiences  of  sister  commonwealths,  the  members 
had  now  at  last  been  able  to  produce  an  instrument  which  satisfied 
their  constituents.  It  retained  the  old  Bill  of  Rights  and  the  septen- 
nial referendum,  but  introduced  elsewhere  many  new  features.  Two- 
thirds  of  the  electors  having  voted  in  its  favor  it  became  effective  in 
June,  1793. 

"It  proved  so  satisfactory  to  the  people,"  says  Plumer,1  "that,  though  at 
every  septennial  term  the  question  of  revision  was  propounded,  it  was  not  until 
1850  that  another  convention,  the  fifth  in  the  series,  was  called." 

No  further  convention  was  held  until  1902,  and  it  submitted  only 
amendments,2  leaving  the  instrument  of  1793  intact  in  its  funda- 
mental features.3 

Thus  at  last  was  attained  that  "permanent  form  of  government" 
for  which  the  statesmen  of  New  Hampshire  had  for  so  many  years 
been  striving.  But  while  accomplishing  this  the  people  of  the  Granite 
State  were  also,  perhaps  unconsciously,  developing  and  perpetuating 
a  system  of  popular  participation  in  constitution-making  which  was 
of  far  greater  importance  than  the  fate  of  any  single  instrument. 
New  Hampshire  takes  her  place  beside  her  political  mentor,  Massa- 
chusetts, and  the  two  remained  the  only  states  which  actually  re- 
quired popular  approval  of  their  own  constitutions  during  the  eigh- 
teenth century.  But  the  plan  which  they  were  thus  applying  was 
destined  to  be  the  model  for  the  states  of  the  entire  American  Union,4 
as  well  as  for  some  nations  of  the  older  world. 

B.    Rhode  Island 

We  have  seen  how  thoroughly  the  idea  of  popular  ratification 
entered  into  the  colonial  polity  of  Rhode  Island.  When  that  state 
renounced  its  allegiance  to  Great  Britain  it  did  not,  as  did  most  of 
the  other  commonwealths,  proceed  to  frame  a  new  constitution.  Like 

1  The  Historical  Magazine  (Morrisania,  New  York,  1868),  N.  S.,  IV,  176,  177. 

2  See  its  Journal  (Concord,  1903),  813  et  seq.     These  were  all  adopted.      Id.  878. 

3  "The  permanent   constitution  .  .  .  was  unchanged  for  sixty  years,  1792-1859, 
a  fact  unparalleled  among  the  other  states  except  Rhode  Island  and  New  Jersey,  and 
has  now  been  in  force  one  hundred  and  twenty  years."  —  Colby,  "Manual  of  the 
Constitution  of  New  Hampshire,"  5,  6. 

4  We  shall  notice  how  the  Western  states,  beginning  with  Indiana  (1816),  adopted 
the  New  Hampshire  system  of  periodical  consultation  of  the  people. 


POPULAR   RATIFICATION   IN    NEW   ENGLAND  191 

its  neighbor  Connecticut,  only  longer,  it  continued  under  its  colonial 
charter.  This  was  a  liberal,  and,  on  the  whole,  a  satisfactory,1  in- 
strument which  had  been  procured  for  the  colony,  as  we  have  seen,2 
by  John  Clarke  and  Roger  Williams  with  the  assistance  of  Sir  Henry 
Vane  the  Younger,  and  for  two  generations  it  remained  the  only 
written  constitution3  of  the  state.  That  its  retention  indicated  no 
departure  by  the  people  of  Rhode  Island  from  democratic  tradition 
is  clear  from  the  manner  in  which  they  considered  the  Federal  Con- 
stitution. The  process  of  consulting  the  people  at  every  step,  which 
we  have  just  reviewed  in  Massachusetts  and  New  Hampshire,  as 
regards  their  state  constitutions,  was  repeated  in  Rhode  Island  with 
reference  to  the  work  of  the  Philadelphia  convention. 

The  Federal  Constitution  was  referred  to  the  states  on  September 
28,  1787.  The  general  assembly  of  Rhode  Island  met  in  the  follow- 
ing October,  but  instead  of  passing  directly  on  the  proposed  instru- 
ment, as  all  the  states  outside  of  New  England  had  done,  the  Rhode 
Island  body  passed  an  act  providing  for  the  printing  and  distribution 
of  a  thousand  copies  of  it,  "that  the  freemen  may  have  an  oppor- 
tunity of  forming  their  sentiments  of  the  proposed  constitution."  4 
It  was  further  provided  that  the  wishes  of  the  people  should  be  ex- 
pressed by  the  ensuing  session  in  the  form  of  instructions  to  their 

"  For  one  hundred  and  eighty  years  it  had  been  regarded  as  the  shield  of  popular 
freedom  against  Royal  prerogative  or  Federal  encroachment.  It  was  the  last  remain- 
ing beacon  planted  by  the  Republicans  of  the  seventeenth  century,  and  so  firmly  that 
the  war  of  the  Revolution  had  not  changed  its  position,  for  they  both  rested  upon  the 
same  foundation, — the  inherent  right  of  self-government." — Arnold,  "History  of 
Rhode  Island"  (New  York,  1859),  I,  294,  295. 

2  Ante,  85. 

3  Some  authorities  have  denied  that  the  state  had  any  written  constitution  at  all 
during  this  period.     Mr.  Justice  Story,  writing  in  1829,  says:    "Rhode  Island  is  the 
only  state  in  the  Union  which  had  not  a  written  constitution  of  government  containing 
its  fundamental  laws  and  institutions.     Until  in  1776,  it  was  governed  by  the  charter 
granted  by  Charles  II  in  the  fifteenth  year  of  his  reign.     That  charter  has  ever  since 
continued,  in  its  general  provision,  to  regulate  the  exercise  and  distribution  of  the  powers 
of  government.     It  has  never  been  formally  abrogated  by  the  people  and,  except  so 
far  as  it  has  been  modified  to  meet  the  exigencies  of  the  revolution,  may  be  considered 
as  now  a  fundamental  law."     Wilkinson  v.  Leland,  2  Pet.  (U.S.)  627,  656. 

Mr.  Thorpe  ("Constitutional  History  of  the  American  People,"  New  York,  1890, 
I,  140)  says  :  —  "  Rhode  Island  and  Connecticut  had  unwritten  constitutions,  for  they  had 
outgrown  their  charters,  though  nominally  organized  under  them."  Cf.  Jameson, 
"Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  sec.  84;  Coxe,  "Judicial 
Power  and  Unconstitutional  Legislation"  (Philadelphia,  1893),  177. 

4  Acts  and  Resolves  of  the  General  Assembly  of  Rhode  Island,  1786-1787  (Ms.), 
150. 


192  THE   PEOPLE'S   LAW 

representatives.1  The  adoption  of  this  course  has  been  ascribed  to 
the  fact  that  the  majority  in  the  assembly  were  opposed  to  the  con- 
stitution, that  they  believed  the  people  to  be  of  the  same  mind,  and 
that  the  agricultural  class  were  generally  unfriendly  to  it,  though 
the  townspeople  were  of  the  opposite  sentiment.2  Be  this  as  it  may, 
it  can  hardly  be  doubted  that  the  assembly  was  unconsciously  fol- 
lowing colonial  precedents.  The  fact  that  a  majority  of  it  was  un- 
friendly to  the  proposed  constitution  would  not  alone  have  been 
sufficient  to  have  suggested  the  plan  followed.  There  were  other 
states  where  similar  sentiments  were  entertained  by  the  party  in 
power  in  the  legislature,  but  this  nowhere  resulted  in  a  formal  plebis- 
citum. 

The  instructions  received  by  the  members  from  the  people  do 
not  appear  to  have  been  numerous,3  but  a  resolution  was  adopted 
providing  for  the  submission  of  the  proposed  constitution  to  the 
people  directly  in  their  town  meetings,  and  at  the  same  time  a  pro- 
posal for  calling  a  convention  was  defeated. 

The  election  took  place  on  March  24,  1788,  and  the  result  was 
the  rejection  of  the  instrument  by  a  majority  of  more  than  ten  to 
one.4  This  expression  of  opinion  was  not,  however,  a  complete -one. 
Indeed,  the  ballots  cast  represented  less  than  half  the  enfranchised 
citizens  of  the  state.  This  was  largely  due  to  the  action  of  the  Federal- 
ists, who  desired  to  have  the  question  determined  by  a  convention,  and 
in  several  of  the  towns  the  electors  abstained  from  voting  on  the  con- 
stitution and  sent  instructions  and  petitions  for  a  convention  instead. 

The  next  instance  of  consulting  the  people  was  in  reference  to  a 
letter  which  had  been  sent  from  New  York  to  the  other  states  pro- 
posing a  convention  to  consider  amendments  to  the  Federal  Constitu- 
tion. It  was  by  virtue  of  this  plan  that  the  New  York  legislature 
had  been  induced  to  ratify  the  original  Constitution,  and  the  letter 
now  came  before  the  Rhode  Island  body  for  action.  It  was  referred 
to  the  towns  and  received  the  approval  of  but  eight  of  them.5 

1  Acts  and  Resolves  of  the  General  Assembly  of  Rhode  Island,  1786-1787  (Ms.),  150. 

2  See  a  valuable  monograph  by  Dr.  Bates,  "Rhode  Island  and  the  Formation  of 
the  Union,"  Columbia  University  Studies  (New  York,'  1898),  Vol.  X,  Pt.  II. 

3  Id.  163. 

4  The  actual  figures  were  2708  against  237  in  favor  of  adoption.    See  papers  relat- 
ing to  the  Adoption  of  the  Constitution  (Ms.),  16-37. 

6  Acts  and  Resolves  of  the  General  Assembly  of  Rhode  Island,  1788-1789  (Ms.), 
5-7;  United  States  Chronicle,  December  8,  1788. 


POPULAR  RATIFICATION   IN   NEW  ENGLAND  193 

Again,  in  the  autumn  of  1789,  in  the  face  of  threatened  hostile 
legislation  on  the  part  of  Congress  by  reason  of  the  continued  aloof- 
ness of  Rhode  Island,  the  general  assembly  declared  that  its  powers 
"are  limited  to  the  administration  of  the  existing  constitution  of  the 
state,  and  do  not  extend  to  devising  or  adopting  alterations  therein," 
and  that  it  is  "  convinced  that  the  freemen  in  this  state  retain  in  their 
own  hands  the  entire  power  of  adopting  or  rejecting  the  said  con- 
stitution." Accordingly  the  people  were  again  requested  to  instruct 
their  representatives  in  the  town  meetings  to  be  held  on  a  uniform 
date  in  the  ensuing  October.1  Finally,  however,  after  numerous  un- 
successful attempts  to  call  a  convention  had  been  made,  and  after 
repeated,  though  not  altogether  satisfactory,  consultations  of  the 
electorate,  an  act  was  passed,  calling  upon  the  people  to  assemble 
again  in  their  town  meetings,  this  time  for  the  purpose  of  choosing 
delegates  to  a  convention  to  be  held  March  i,  1790,  for  the  purpose 
of  considering  the  Federal  Constitution.2  Delegates  were  chosen  at 
the  appointed  time  and  two  of  the  towns  again  instructed,  Ports- 
mouth 3  for  adoption  and  Richmond  4  for  rejection. 

One  of  the  objections  to  the  Federal  Constitution  was  its  lack  of 
a  Bill  of  Rights.  When  the  convention  met,  a  committee  was  ap- 
pointed for  the  purpose  of  drafting  amendments  and  also  a  Bill  of 
Rights,  and  after  these  were  reported  by  the  committee  the  conven- 
tion voted  to  submit  them  to  the  people,  and  it  then  adjourned  until 
late  in  May.5  No  question  seems  to  have  arisen  in  the  minds  of  these 
Rhode  Island  delegates  but  that  the  people  should  pass  on  the  result 
of  their  labors.  Nor  were  the  latter  slow  in  suggesting  changes. 
The  functions  and  powers  of  the  Federal  Senate  and  judiciary  and 
the  restriction  of  slavery  were  some  of  the  subjects  concerning  which 
proposed  amendments  came  from  the  towns.6  During  the  interval 
of  adjournment,  also,  some  of  the  delegates  took  bccasion  to  seek 
further  instructions  from  their  constituents.  The  commercial  dangers 
of  longer  remaining  outside  of  the  Union  reduced  the  ranks  of  the 
Anti-Federalists,  and  the  assent  of  the  convention  to  the  Federal 

1  Acts  and  Resolves,  108. 

2  Id.  157.     Cf.  Providence  Gazette  for  January  23,  1790. 

3  Papers  relating  to  the  Adoption  of  the  Constitution  of  the  United  States,  95. 

4  Id.  99. 

5  Minutes  of  the  Convention  contained  in  Papers  relating  to  the  Adoption  of  the 
Constitution.     See  also  Providence  Gazette  for  March  13,  1790. 

8  Papers  relating  to  the  Adoption  of  the  Constitution  of  the  United  States,  96-99. 
o 


194  THE  PEOPLE'S   LAW 

Constitution  was  finally  secured.  But  the  act  of  ratification  included 
also  the  proposed  Bill  of  Rights,  an  amendment  which  the  conven- 
tion had  framed  in  accordance  with  the  express  wishes  of  its  constit- 
uents. The  history  of  the  adoption  of  the  Federal  Constitution 
shows  no  instance  in  which  the  people  were  so  thoroughly  and  con- 
tinuously consulted  as  in  the  case  of  Rhode  Island. 

It  was  suggested  above  that  the  colonial  charter  was,  on  the 
whole,  satisfactory  for  state  purposes.  This  is  demonstrated  by  the 
numerous  unsuccessful  attempts  to  displace  it  during  the  first  forty 
years  of  the  nineteenth  century.  In  1824  a  proposed  constitution, 
framed  by  a  convention  and  submitted  to  the  people  in  accordance 
with  Rhode  Island  tradition,  was  rejected,1  and  a  movement  to  the 
same  end  ten  years  later  proved  abortive.2  In  1841  two  rival  con- 
ventions met  and  instruments  were  submitted  by  them,  but  the  state 
was  involved  in  civil  war  over  their  validity,3  and  it  was  not  until 
1843  tnat  a  permanent  state  constitution  was  finally  evolved.  Into  the 
details  of  these  contests  we  need  not  enter,  for  we  are  here  concerned 
only  with  the  manner  in  which  popular  ratification  itself  was  estab- 
lished, and  it  is  clear  that  this  result  was  accomplished  for  Rhode 
Island  long  before  these  later  struggles.  Her  colonial  experiences  were 
repeated  in  the  closing  years  of  the  eighteenth  century,  and,  consciously 
or  unconsciously,  the  Rhode  Islanders  of  that  period  were  following 
in  the  footsteps  of  their  fathers. 

C.     Connecticut 

The  state  of  Connecticut,  like  Rhode  Island,  had  been  unaffected 
by  the  movement  for  a  new  constitution  which  marked  the  Revolu- 
tionary era  and  had,  as  we  have  seen,  continued  in  force  its  colonial 
charter.4  By  the  latter  part  of  the  second  decade  of  the  nineteenth 
century  popular  sentiment  had  become  so  pronounced  that  how- 
ever liberal  this  charter  may  have  been  for  the  colonial  and  Revolu- 

1  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  649;   Ober- 
holtzer,  "The  Referendum  in  America"  (2d  Ed.,  New  York,  1900),  112. 

2  Jameson,  649 ;  Maxey,  American  Law  Rev.  XLII,  566  et  seq. 

3  Jameson,  649,  sec.  226.     See  the  case  of  Luther  v.  Borden,  7  How.  (U.S.)  i, 
for  a  judicial  review  of  this  controversy. 

4  This  was  done  by  an  act  of  the  legislature  expressly  so  declaring  and  at  the  same 
time  promulgating  a  brief  declaration  of  rights.     See  its  text,  Poore,  "  Charters  and 
Constitutions,"  I,  257,  258. 


POPULAR   RATIFICATION   IN   NEW   ENGLAND  195 

tionary  period,  it  was  no  longer  adequate  to  the  needs  of  a  progres- 
sive modern  state.  A  constitutional  convention  was  accordingly 
called  which  met  at  Hartford  on  August  26,  iSiS.1  The  instrument 
framed  by  this  body  is  distinguished  by  the  introduction  of  the  plan 
of  proposing  amendments  by  a  vote  of  two  successive  legislatures.2 
The  plan  was  not,  however,  strictly  original  with  this  body.3  It  had 
been  foreshadowed  in  the  Articles  of  Confederation  which  provided 
for  amendments  to  be  submitted  by  Congress  and  ratified  by  the 
state  legislatures,4  and  a  learned  constitutional  historian  of  Connecti- 
cut finds  its  germ  in  the  system  of  amendment  under  the  "Funda- 
mental Orders."  5 

There  seems  to  have  been  no  discussion  in  this  convention  con- 
cerning the  propriety  of  submitting  the  results  of  its  labors  to  the 
people.  The  pursuit  of  that  method  was  assumed  as  a  matter  of 
course.  The  lessons  in  popular  law-making,  learned  by  the  people 
of  Connecticut  nearly  two  centuries  before,  had  never  been  forgotten. 
There  was,  however,  some  debate  as  to  the  number  which  should  be 
required  to  ratify,  successive  motions  being  made  to  require  three- 
fifths,  four-sevenths,  and  five-ninths,  respectively.6  These  were  all 
rejected,  and  the  new  instrument  went  to  the  people  with  the  follow- 
ing provisions  concerning  the  manner  of  ratification :  — 

"It  shall  be  the  duty  of  the  Secretary  forthwith  to  transmit  seven  hundred 
copies  thereof  to  the  town-clerk  of  the  several  towns  in  the  State,  which  copies 
shall  be  apportioned  among  said  towns  according  to  their  respective  lists.  The 
said  Constitution  shall,  by  said  town  clerk,  be  submitted  to  the  consideration  of 
the  qualified  voters  in  said  towns  for  their  approbation  and  ratification,  on  the 
first  Monday  in  October  next  in  the  respective  town-meetings  legally  warned  for 
the  purpose. 

And  that  the  number  required  to  approve  and  ratify  said  Constitution  be 
a  majority  of  the  qualified  voters  present  and  voting  at  such  meeting  to  be  con- 

1  See  its  Journal,  printed  by  order  of  the  General  Assembly  (Hartford,  1873). 

2  Connecticut  Constitution  (1818),  Art.  XI;  Poore,  "  Charters  and  Constitutions  " 
(Washington,  1877),  266. 

3  Borgeaud  ("Adoption  and  Amendment  of  Constitutions,"  147)  speaks  of  it  as 
"the  result  of  a  happy  compromise"  between  the  Massachusetts  plan  of  submitting 
amendments  by  a  convention  and  the  Maryland  system  of  amendments  by  a  vote  of 
two  successive  legislatures  after  a  general  election. 

4  Art.  XIII;    see  Thayer's  "Cases  on  Constitutional  Law"  (Cambridge,  1895), 
I,  220. 

8  Baldwin,  "Modern  Political  Institutions"  (Boston,  1898),  48. 

8  Journal  of  Connecticut  Convention  of  1818  (Hartford,  1873),  119,  120. 


196  THE   PEOPLE'S    LAW 

vened  agreeably  to  the  resolution  of  the  General  Assembly  in  such  cases  provided, 
passed  at  their  session  of  May  last."  l 

This  constitution  was  adopted  by  a  majority  of  something  over 
1500  in  a  total  vote  of  more  than  26,000,  and,  after  being  proclaimed 
by  the  governor  became,  and  remained  for  over  half  a  century,  the 
fundamental  code  of  Connecticut. 

D.     Maine 

Meanwhile  another  New  England  community  was  applying  and 
developing  the  practice  of  popular  ratification.  From  the  seventeenth 
century  the  region  known  as  Maine  was  subject  to  the  jurisdiction  of 
Massachusetts.2  Aside  from  the  influence  of  the  general  course  of 
events  in  the  latter  colony,  there  is  at  least  one  early  instance,  prob- 
ably typical  of  many,  of  the  employment  of  the  covenant  idea  in  the 
"province  of  Maine."  On  September  25,  1682,  the  members  of  the 
Baptist 3  Church  at  Kittery  organized  by  adopting  and  subscribing 
an  instrument,4  in  part  reciting :  — 

"Wee  whose  names  are  here  unde  written  doe  solemnly  &  on  good  con- 
sideration, god  Assisting  us  by  his  grace  give  up  our  selves  to  ye  lord  &  to  one 
another  in  Solemn  Covenant,  wherein  wee  doe  Covenant  &  promise  to  walk 
with  god  &  one  with  another  In  A  dew  and  faithfull  observance  of  all  his  most 
holy  and  blessed  Commandmtts,  Ordinances,  Institutions  or  Appointments, 
Revealed  to  us  in  his  sacred  word  of  ye  ould  &  new  Testament." 

Naturally  enough,  too,  the  town  meeting  was  early  transplanted 
to  the  northern  province,  and  it  was  through  this  institution  and  in 
the  course  of  the  movement  for  separation  from  Massachusetts  that 
the  ideas  of  the  covenant  came  to  be  applied  to  political  affairs  in 
Maine. 

Judge  Jameson,  indeed,  observes 5  that  "the  earliest  official  action 
relating  to  the  proposed  separation  "  was  a  Massachusetts  act  of 
1819.  But  aside  from  the  fact  that  the  General  Court  passed  a 
resolve  to  submit  the  question  to  the  towns  of  Maine  as  early  as 
1816,  and  that  a  petition  therefor  was  presented  to  that  body  in  1786, 

1  Journal  of  Connecticut  Convention  of  1818  (Hartford,  1873),  119,  120. 

2  McDonald,  "The  Government  of  Maine,"  8  et  seq. 

3  By  this  time  the  covenant  had  come  into  general  use  among  Baptist  as  well  as  Con- 
gregational churches  in  America.     See  Burrage,  "The  Church  Covenant  Idea,"  173. 

4  The  full  text  is  printed  in  Burrage,  181. 

5  "Constitutional  Conventions,"  sec.  176. 


POPULAR   RATIFICATION   IN   NEW  ENGLAND  197 

the  history  of  Maine  itself  discloses  the  repeated  employment  of  the 
machinery  of  the  town  meetings,  and  appeals  to  the  people  on  this 
question  for  an  entire  generation,  surpassing  in  this  respect  even  the 
parent  state  of  Massachusetts. 

During  the  Revolution  the  need  of  a  separate  government  was 
felt  by  the  people  of  Maine,  and  after  its  close  this  feeling  was  in- 
tensified by  a  desire  for  relief  from  the  state  debt  of  Massachusetts. 
As  early  as  1785  a  meeting  was  held  at  Falmouth  (now  Portland), 
which  issued  an  address  to  the  towns.1  Out  of  this  came  a  delegate 
convention  which  assembled  in  1786  and  put  forth  a  statement  of 
grievances,  and  another  in  the  same  year  which,  besides  issuing  an 
address  to  the  people,  invited  them  to  vote  in  their  town  meetings  on 
the  question  of  separation.2  When  the  returns  of  the  vote  thus  taken 
were  counted  it  was  found  that  only  a  little  more  than  one-third  of 
the  towns  had  responded,  but  that  of  these  three-fourths  were  in 
favor  of  separation,  while  the  popular  majority  was  nearly  two-thirds.3 
This  last  convention  also  presented  a  petition  to  the  General  Court, 
praying  for  separation,  but  that  body  made  some  concessions  which 
resulted  in  temporarily  checking  the  movement.4  A  revival  of  the 
agitation  and  another  reference  of  the  question  to  the  voters  hi  the 
town  meetings  appears  to  have  been  made  in  i8o2,5  but  it  was  not 
until  the  experiences  of  the  second  war  with  Great  Britain  had  em- 
phasized the  necessity  of  uniting  to  form  a  strong  government  at 
home,  that  the  separation  movement  was  renewed  in  earnest. 

As  early  as  the  beginning  of  1816  petitions  for  separation  began 
to  be  presented  to  the  General  Court,6  and  in  February  of  that  year 
it  passed  a  resolve :  — 

"That  it  shall  be  the  duty  of  the  Selectmen  of  the  several  towns  and  districts, 
and  of  the  Assessors  of  the  several  plantations  within  the  district  of  Maine  to 
issue  their  warrants,  requiring  the  inhabitants  of  said  towns,  districts  and  plan- 
tations, respectively,  who  are  qualified  to  vote  in  the  choice  of  Senators  in  the 
General  Court,  to  assemble  on  Monday,  the  2Oth  day  of  May  next,  and  give  in 

1  Wmiamson,  "History  of  Maine,"  II,  526.  '  Id. 

3  645  out  of  994.     Id.  531.  *  Id.  532. 

6  Goodrich,  "Pictorial  History  of  the  United  States,"  369. 

8  See  "Resolve  on  the  petitions  of  sundry  towns  and  individuals  in  the  district 
of  Maine,  praying  for  a  separation  of  that  district  from  the  other  part  of  this  state, 
loth  February,  1816."  Massachusetts  Resolves,  Jan.-Feb.  Sess.,  1816,  148.  There 
were  petitions  from  49  towns  in  their  corporate  capacity  and  from  2936  individuals 
Williamson,  "History  of  Maine,"  II,  663. 


198  THE  PEOPLE'S   LAW 

their  written  votes  on  the  following  question  to-wit :  '  Shall  the  Legislature  be 
requested  to  give  its  consent  to  the  separation  of  the  District  of  Maine  from  Massa- 
chusetts proper,  and  to  the  erection  of  said  District  into  a  separate  State?  '  —  And 
it  shall  be  the  duty  of  said  Selectmen  and  Assessors  to  receive  and  certify  the 
whole  number  of  votes  given  in  at  said  meetings,  respectively,  by  the  voters  quali- 
fied as  aforesaid,  for  and  against  such  separation,  together  with  the  whole  number 
of  qualified  voters  in  such  town,  district  or  plantation."  x 

The  vote  was  duly  taken  in  the  town  meetings,  and  the  returns 
disclosed  that  a  large  majority  of  those  voting  were  in  favor  of  separa- 
tion, but  that  less  than  half  the  qualified  electors  had  participated.2 
Nevertheless  at  the  ensuing  session  in  June  of  the  same  year,  another 
act  was  passed,  this  time  submitting  to  the  Maine  electors  the  question— 

"Is  it  expedient  that  the  District  of  Maine  shall  be  separated  from  Massa- 
chusetts, and  become  an  Independent  State,  upon  the  terms  and  conditions  pro- 
vided" therein.3 

The  act  also  provided  for  a  convention  to  which  the  returns 
should  be  transmitted  and  which,  in  case  the  affirmative  of  the  ques- 
tion should  receive  "a  majority,  of  five  to  four  at  least,"  should  pro- 
ceed to  frame  a  constitution.4  This  convention  was  duly  chosen 
and  met  at  Brunswick  in  1816.  The  returns  from  the  town  meet- 
ings disclosed  a  majority  of  something  over  1600  in  a  total  vote  of 
22,316,  but  the  committee  which  examined  them  endeavored  to  show 
a  compliance  with  the  enabling  act  by  reporting  that  the  aggregate 
majority  of  yeas  in  the  towns  was,  to  the  aggregate  majority  of  nays, 
in  the  ratio  of  five  to  four.  When  this  report  was  placed  before  the 
General  Court,  it  was  referred  to  a  committee  which  expressed  its 
"full  conviction,  that  the  Convention  have  misconstrued  the  act  by 
which  their  powers  were  defined:  That  the  word  'majority'  refers 
to  the  majority  of  votes  returned,  and  not  to  the  aggregate  of  local 
and  municipal  majorities."  5  It  further  declared :  — 

"  Massachusetts  will  be  anxious  for  no  union  which  does  not  spring  from 
mutual  affection  and  a  sense  of  common  interest.  But  in  the  ordinary  course 
of  legislation,  questions  involving  merely  the  division  of  a  parish  or  a  town,  are 
rarely  agitated  more  than  once  in  the  same  political  year.  Should  then  the  same 
Legislature  which  has  once,  and  so  lately,  adjusted  the  principles,  and,  with 

1  Massachusetts  Resolves,  Jan.-Feb.  Sess.,  1816,  p.  148. 

2  The  vote  was  10,393  veas  to  6501  nays,  while  the  total  electorate  numbered 
37,828. 

3  Massachusetts  Resolves,  June  Sess.,  1816,  cf.  Williamson,  663. 

4  Id.  Nov. -Dec.  Sess.,  1816,  p.  318.  s  Id.  318,  319. 


POPULAR   RATIFICATION    IN   NEW  ENGLAND  199 

great  deliberation,  fixed  the  terms  and  conditions,  which  appertain  to  the  dis- 
memberment of  the  State,  revise  the  fundamental  provisions  of  its  act  without 
any  new  occasion,  they  might  be  considered  as  betraying  an  undue  solicitude  to 
accelerate  the  partition,  and  as  regardless  of  the  feelings  and  interest  of  a  large 
and  respectable  class  of  their  fellow-citizens."  1 

The  General  Court  thereupon:  — 

"  Resolved,  That  the  contingency  upon  which  the  consent  of  Massachusetts 
was  to  be  given  for  the  Separation  of  the  District  of  Maine  has  not  happened ; 
and  that  the  powers  of  the  Brunswick  Convention  to  take  any  measures  tending 
to  that  event,  have  ceased. 

Resolved,  That  it  is  not  expedient  for  the  present  General  Court  to  adopt 
any  further  measures  in  regard  to  the  separation  of  the  District  of  Maine." 2 

In  1819,  however,  consideration  of  the  question  was  resumed,  and 
in  June  of  that  year  an  act  was  passed  by  the  General  Court  reciting 
that  "it  has  been  represented  to  this  legislature  that  a  majority  of 
the  people  of  the  district  of  Maine  are  desirous  of  establishing  a 
separate  and  independent  government,"  authorizing  the  question 
again  to  be  submitted  in  the  town  meetings,  but  this  time  fixing  the 
requisite  majority  in  favor  of  separation  at  but  1500,  providing  for 
a  constitutional  convention,  and  requiring  its  work  to  be  submitted 
to  the  voters.3  The  reduced  majority  required  for  the  proposal  in- 
sured its  adoption,  for  it  was  less  than  the  majority  returned  three 
years  before.  The  freemen  having  declared  in  their  town  meetings 
for  separation,  delegates  were  chosen  to  a  convention  which  met  at 
Portland  in  the  following  October,  and  framed  a  constitution  which 
was  submitted  to  and  ratified  by  the  people  by  a  large  majority.4 

Thus  through  a  third  of  a  century  of  experiment  and  effort  — 
after  no  less  than  five  consultations  of  the  people  —  was  evolved  the 
constitution  of  Maine.  By  reason  of  its  provisions,  as  well  as  of  its 
history,  it  is  a  notable  instrument.  For  though  modelled  largely  upon 
that  of  the  parent  state,5  it  marks  a  distinct  advance  in  the  develop- 
ment of  popular  ratification,  especially  with  reference  to  future 
amendments.  We  have  seen  that  in  Massachusetts  and  New  Hamp- 
shire constitutional  changes  were  left  to  the  cumbrous  method  of 

1  Massachusetts  Resolves,  Nov. -Dec.  Sess.,  1816,  321.  2  Id.  322. 

3  Massachusetts  Laws,  May-June  Sess.,  1819  (Boston,  1819),  Chap.  CLXI. 

4  Williamson,  "History  of  Maine,"  II,  674. 

5  "Retiring  to  a  commodious  room  they  laid  before  them  that  [constitution]  of 
the  commonwealth,  marked  the  acceptable  parts,  and  reported  a  new  one  to  the  Con- 
vention, by  portions,  as  they  proceeded  with  a  finished  draft."     Id.  673,  674. 


200  THE   PEOPLE'S   LAW 

proposal  by  a  convention,  while  in  Connecticut  and  Alabama  the 
assent  of  two  successive  legislatures  was  required.  The  method  pre- 
scribed by  this  new  constitution  of  Maine  was  as  follows :  — 

"  The  legislature,  whenever  two-thirds  of  both  houses  shall  deem  it  neces- 
sary, may  propose  amendments  to  this  constitution ;  and  when  any  amendment 
shall  be  so  agreed  upon,  a  resolution  shall  be  passed  and  sent  to  the  selectmen 
of  the  several  towns,  and  the  assessors  of  the  several  plantations,  empowering  and 
directing  them  to  notify  the  inhabitants  of  their  respective  towns  and  plantations, 
in  the  manner  prescribed  by  law,  at  their  next  annual  meetings  in  the  month  of 
September,  to  give  in  their  votes  on  the  question  whether  such  amendment  shall 
be  made;  and  if  it  shall  appear  that  a  majority  of  the  inhabitants  voting  on  the 
question  are  in  favor  of  such  amendment,  it  shall  become  a  part  of  this  constitu- 
tion." l 

This,  it  will  be  seen,  greatly  simplified  the  plan  of  amendment 
and  brought  it  nearer  to  the  people.  But  a  still  more  important 
advance  was  that  relating  to  the  vote  required  in  order  to  ratify.  Of 
the  preceding  constitutions  which  had  provided  for  popular  ratifica- 
tion at  all,  that  of  Massachusetts  required,  for  the  approval  of  amend- 
ments, "two  thirds  of  the  qualified  voters  throughout  the  state";2 
Kentucky,3  and  after  it  Alabama,4  required  a  majority  of  those  vot- 
ing for  representatives.  And  while  the  New  Hampshire  constitu- 
tion of  1792  permitted  ratification  by  two-thirds  of  those  "present 
and  voting  on  the  subject,"  5  it  required  a  full  majority  of  those 
present  and  voting  at  the  town  meetings  in  order  to  authorize  the 
calling  of  a  convention,  which  could  propose  amendments.6  The 
Maine  plan  may  have  been  suggested  by  the  New  Hampshire  pro- 
vision, but  its  adoption  seems  more  likely  to  have  resulted  from  the 
experience  of  Maine  in  her  long  struggle  for  independent  govern- 
ment. For  at  least  twice  during  that  period  pronounced  majorities 
had  been  returned  in  favor  of  separation,  only  to  be  nullified  by  the 
indifference  of  non-participants.  The  new  plan  removed  this  impedi- 
ment to  popular  action,  and  left  the  question  of  future  changes  to  be 
decided  by  those  who  were  sufficiently  interested  to  express  their 
sentiments  thereon. 

Nor  has  this  innovation  resulted  in  frequent  or  ill-advised  changes 

1  Maine  Constitution,  Art.  X,  sec.  4. 

8  Original  Constitution,  Chap.  VI,  Art.  X. 

3  Kentucky  Constitution,  1791,  Art.  XI,  sec.  i. 

4  Alabama  Constitution,  1819,  amendment  clause. 
B  Sec.  99.  «  Id. 


POPULAR   RATIFICATION   IN   NEW   ENGLAND  2OI 

in  the  organic  law  of  Maine.  The  constitution  with  which  that  state 
entered  the  Union  is,  with  comparatively  slight  and  unimportant 
changes,  its  constitution  to-day.  There  have  been  more  than  thirty 
amendments  in  the  intervening  years,1  but  none  of  these  have  been 
radical,  most,  if  not  all,  have  been  beneficial,  and  some  have  indicated 
a  high  degree  of  enlightenment.2  So  satisfactory,  indeed,  has  proved 
this  plan  of  amendment  by  direct  submission  and  approval  of  the 
interested  voters  that  the  people  of  Maine  have  never  seen  fit  to 
call  a  second  constitutional  convention.3  The  organic  law  of  the 
"  Pine  Tree  State"  affords  one  of  the  best  examples  of  the  permanency 
of  a  constitution  rooted  and  grounded  in,  as  well  as  developed  by, 
the  consent  of  the  people. 

E.    Other  States 

The  Massachusetts  constitution  remained  unchanged  for  forty 
years.  By  1820,  however,  the  need  of  some  revision  was  generally 
felt,  and,  in  accordance  with  the  plan  prescribed  by  the  existing  in- 
strument, delegates  were  chosen  to  a  convention  to  frame  amend- 
ments. It  assembled  in  Boston  in  the  autumn  of  that  year  and  sub- 
mitted fourteen  proposed  amendments,  only  nine  of  which  were 
ratified.4  One  5  of  these,  however,  abolished  the  cumbrous  method  of 
amendment  by  convention  only,  and  substituted  one  more  like  the 
Connecticut  system,  then  recently  adopted,  though  still  requiring  a 
two-thirds  vote  on  the  part  of  the  lower  house  in  order  to  submit  a 
proposal.  At  the  same  time  the  two-thirds  majority  required  for 
ratification  was  reduced  by  adopting  substantially  the  Maine  pro- 
vision permitting  amendments  to  be  "ratified  by  a  majority  vote  of 
the  qualified  voters  voting  thereon."  6  The  people  of  Massachu- 

1  McDonald,  "The  Government  of  Maine,"  26,  27  ;    post,  366. 

2  E.g.  that  imposing  the  educational  qualification  for  electors.     Id.  27. 

3  A   "constitutional   commission"   which  proposed  amendments   was   appointed 
by  the  governor  in  1875,  but  this  was  not  only  extra-constitutional,  but  also  without 
legislative  authority.     See  McDonald,  26,  27.     Cf.  Jameson,   "Constitutional  Con- 
ventions," 652. 

4  Journal  of  the  Debates  and  Proceedings  of  the  Convention  to  revise  the  Constitu- 
tion of  Massachusetts  (2d  Ed.,  Boston,  1853),  634. 

5  Art.  IX. 

6  These    features    are    still    retained.     Massachusetts    Constitution,    Articles    of 
Amendment  IX;    Revised  Laws  (Boston,  1902),  41;    Poore,  "Charters  and   Consti- 
tutions," I,  974. 


202  THE    PEOPLE'S   LAW 

setts  had  been  learning  from  the  constitutional  experience  of  the 
states  around  them.  Another  of  these  amendments  provided  for  the 
establishment  of  municipal  governments,  but  only  "with  the  consent 
and  on  the  application  of  a  majority  of  the  inhabitants  of  such  town, 
present  and  voting  thereon."  1 

In  1903  the  General  Court  adopted  a  Resolve,2  providing  for  the 
submission  of  amendments  to  the  constitution  upon  the  petition  of 
fifty  thousand  voters,  and  with  the  approval  of  fifteen  members  of 
the  Senate  and  a  majority  of  the  representatives.  The  proposal  was 
not,  however,  agreed  to  by  the  succeeding  General  Court  in  accordance 
with  existing  requirements. 

The  adoption  of  a  constitution  in  Rhode  Island  left  Vermont  as 
the  only  New  England  state  without  a  popularly  ratified  fundamental 
code.  That  state's  original  constitution  had  been  proclaimed  in 
I777  by  the  convention  which  framed  it,  and  while  this  course  occa- 
sioned some  criticism  at  the  time,3  and  the  defect  was  sought  to  be 
remedied  by  acts  of  the  legislature,4  none  of  the  subsequent  constitu- 
tions or  amendments  were  submitted.  Borrowing  from  Pennsylvania 
the  system  of  a  Council  of  Censors,5  the  early  Vermonters  provided 
that  this  body  should  have  the  sole  power  of  calling  constitutional 
conventions  and  proposing  amendments,  leaving  to  the  convention 
merely  the  option  to  accept  or  reject.6  Thus,  while  all  the  other 
states  were  adopting  the  democratic  plan  of  constitution-making, 
Vermont  continued  to  employ  the  eighteenth-century  method.7 
Finally  in  1870  a  convention  which  met  at  Montpelier 8  adopted 
several  amendments,  one  of  which  abolished  9  the  Council  of  Censors, 
and  another  provided  as  follows :  — 

1  Art.  II.  *  Massachusetts  Acts  and  Resolves,  1903,  p.  583. 

3  Objections  were  offered  from  Bennington.     Allen,  "History  of  Vermont,"  108- 
110;  Collections  Vt.  Hist.  Soc.  I,  391. 

4  Jameson,  "Constitutional  Conventions"   (4th  Ed.,   Chicago,    1877),   sec.   154. 
"There  was  a  general  feeling  though  that  it  was  not  the  correct  procedure,  but  the  long 
boundary  contests  in  which  she  had  been  engaged  with  Massachusetts,  New  Hampshire, 
and  especially  New  York,  made  it  seem  unwise  to  take  the  risk  of  consulting  the  people." 
—  Oberholtzer,  "Law  Making  by  Popular  Vote,"  Annals  American  Academy  of  Politi- 
cal and  Social  Science,  II,  327. 

6  Jameson,  sec.  155;   Revised  Laws  of  Vermont  (Rutland,  1881),  50. 

8  Constitution  of  1793,  Chap.  II,  sec.  43;  Poore,  II,  1887;  Revised  Laws,  42. 

7  Jameson,  648,  649,  sees.  217,  220. 

8  See  its  Journal  (Burlington,  1870). 

8  Art.  XXV,  sec.  4;  Poore,  II,  1887;  Revised  Laws,  49. 


POPULAR   RATIFICATION    IN    NEW   ENGLAND  203 

"At  the  session  of  the  General  Assembly  of  this  state,  A.D.  1880,  and  at 
the  session  thereof  every  tenth  year  thereafter,  the  Senate  may,  by  a  vote  of  two 
thirds  of  its  members,  make  proposals  of  amendment  to  the  Constitution  of  the 
State,  which  proposals  of  amendment  if  concurred  in  by  a  majority  of  the  mem- 
bers of  the  House  of  Representatives,  shall  be  entered  on  the  journals  of  the  two 
houses  and  referred  to  the  General  Assembly  then  next  to  be  chosen,  and  be  pub- 
lished in  the  principal  newspapers  of  the  state;  and  if  a  majority  of  the  members 
of  the  Senate  and  of  the  House  of  Representatives  of  the  next  following  General 
Assembly  shall  respectively  concur  in  the  same  proposals  of  amendment,  or  any 
of  them,  it  shall  be  the  duty  of  the  General  Assembly  to  submit  the  proposals 
of  amendment  so  concurred  in  to  a  direct  vote  of  the  freemen  of  the  state;  and 
such  of  said  proposals  of  amendment  as  shall  receive  a  majority  of  the  votes  of 
the  freemen  voting  thereon  shall  become  a  part  of  the  Constitution  of  this  state."  l 

This,  however,  was  but  an  eddy  in  the  current  of  New  England's 
constitutional  development.  The  Massachusetts  convention  of  1820 
had  practically  taken  the  final  step  in  extending  a  simplified  system 
of  popular  ratification  throughout  New  England. 

1  Art.  XXV;  Revised  Laws,  49. 


CHAPTER  XIV 

POPULAR  RATIFICATION  IN  THE  SOUTH 
A.    Southern  System  Indigenous 

WHILE  popular  constitution-making  was  thus  being  perfected  in 
New  England,  colonial  experience  in  popular  legislation  was  bearing 
fruit  in  the  South.  There  seems  to  be  a  vague  notion  in  some  quarters 
that  the  latter  section  merely  followed  the  former  and  borrowed  its 
completed  system.  Thus  Dr.  Borgeaud  says,1  "The  South  was  not 
slow  in  imitating  the  example  of  the  North,  and  following  in  its  turn 
the  evolution  of  popular  government."  But  where  is  the  evi- 
dence of  its  "imitating  the  example  of  the  North"?  Means  of  com- 
munication were  slow  and  primitive  when  this  "evolution"  began  in 
the  South,  and  the  interchange  of  ideas  between  distant  and  not 
altogether  friendly  sections  was  neither  easy  nor  common.  Besides, 
as  we  shall  find  later,  the  Southern  constitutions  of  that  period  have 
an  individuality  of  their  own ;  while  resembling  each  other,  they  are, 
on  the  whole,  materially  different  from  those  produced  in  the  corre- 
sponding period  at  the  North. 

But  it  is  unnecessary  to  seek  a  foreign  origin  for  institutions  and 
customs  whose  germs  may  easily  be  found  at  home.  We  have  fol- 
lowed the  course  of  popular  legislation  in  the  South  up  to  the  midst 
of  the  Revolutionary  War;  why  should  we  look  elsewhere  for  the 
source  of  popular  constitution-making?  While  the  popular  constitu- 
tions of  New  England  may  be  traced  back  to  its  town  compacts  and 
legislation  of  the  seventeenth  century,  those  of  the  South  are  even 
more  closely  connected  with  the  "associations"  of  the  Carolinas  and 
the  covenants  of  the  mountaineers.  Even  more  closely,  because  in 
the  South  the  two  movements  were  separated  by  a  few  years  at  most, 
and  the  first  Southern  constitution  to  provide  for  an  appeal  to  the 

1  "Adoption  and  Amendment  of  Constitutions"  (Hazen's  Trans.,  New  York, 
1895),  161,  162. 

204 


POPULAR   RATIFICATION   IN   THE   SOUTH  205 

people  appeared  in  a  state  where  some  of  the  latest  of  these  experi- 
ments in  popular  legislation  were  made. 

B.   Kentucky 

While  the  source  of  Kentucky's  institutional  development  is  thus 
apparent,  the  formal  authority  for  its  first  constitution  came  not  from 
the  people,  whose  early  lessons  in  self-government  we  have  already 
followed,  but  from  the  legislature  of  Virginia,  of  which  commonwealth 
Kentucky  at  first  formed  a  part.  That  body  in  1789  passed  an  act 
providing  for  a  convention  to  meet  at  Danville,  Kentucky,  "with  full 
power  and  authority  to  frame  and  establish  a  fundamental  constitu- 
tion of  government  for  the  proposed  State."  1  The  body  which  as- 
sembled in  1792,  pursuant  to  this  act,  made  this  "compact  with  the 
state  of  Virginia"  a  part  of  the  instrument  which  it  framed2  and 
exercised  the  power  thus  conferred  "to  establish"  a  constitution. 
But  while  in  this  feature  the  convention  followed  the  Virginia  law  by 
which  it  doubtless  felt  bound,  it  at  the  same  time  took  a  step  which 
showed  that  early  Kentucky  precedents  were  not  without  influence. 
The  new  instrument  contained  the  following  provision  relative  to 
future  constitutional  changes :  — 

"  That  the  citizens  of  this  State  may  have  an  opportunity  to  amend  or  change 
this  constitution  in  a  peaceable  manner,  if  to  them  it  shall  seem  expedient,  the 
persons  qualified  to  vote  for  representatives  shall,  at  the  general  election  to  be 
held  in  the  year  one  thousand  seven  hundred  and  ninety  seven,  vote  also,  by  ballot, 
for  or  against  a  convention,  as  they  shall  severally  choose  to  do;  and  if  thereupon 
it  shall  appear  that  a  majority  of  all  the  citizens  in  the  State  voting  for  representa- 
tives have  voted  for  a  convention,  the  general  assembly  shall  direct  that  a  similar 
ballot  shall  be  taken  the  next  year;  and  if  thereupon  it  shall  also  appear  that  a 
majority  of  all  the  citizens  in  the  State  voting  for  representatives  have  voted  for 
a  convention,  the  general  assembly  shall,  at  their  next  session,  call  a  convention 
to  consist  of  as  many  members  as  there  shall  be  in  the  house  of  representatives, 
to  be  chosen  in  the  same  manner,  (at  the  same  places  and  at  the  same  time  that 
representatives  are),  by  the  citizens  entitled  to  vote  for  representatives,  and  to 
meet  within  three  months  after  the  said  election  for  the  purpose  of  readopting, 
amending  or  changing  this  constitution.  If  it  shall  appear  upon  the  ballot  of 
either  year  that  a  majority  of  the  citizens  voting  for  the  representatives  is  not  in 
favor  of  a  convention  being  called,  it  shall  not  be  done  until  two-thirds  of  both 
branches  of  the  legislature  shall  deem  it  expedient."3 

1  Bullitt  and  Feland's  Kentucky  General  Statutes  (Louisville,  1887),  55. 

2  Id.  66.  3  Art.  XI,  id.  67;   Poore's  "Charters  and  Constitutions,"  I,  654. 


206  THE   PEOPLE'S   LAW 

Here,  then,  we  have  the  first  instance,  outside  of  New  England,  of 
an  American  state  providing  for  a  plebiscitum  on  a  constitutional  ques- 
tion, and  even  in  New  England  up  to  this  time  only  the  states  of 
Massachusetts  and  New  Hampshire  had  consulted  the  people  directly 
with  reference  to  their  constitutions.  The  movement  in  the  South 
for  a  people's  constitution,  though  of  distinct  and  subsequent  origin 
and  less  perfect  in  achievement,  was  not  much  later  in  point  of  time 
than  that  of  New  England. 

Nor  was  this  epoch-making  clause  in  the  new  instrument  merely 
a  paper  declaration.  When  the  time  fixed  for  consulting  the  people 
arrived,  the  question  of  calling  a  convention  was  submitted,  and  a  clear 
majority  of  the  votes  regularly  returned  was  in  favor  of  the  proposal.1 
Here  again  Kentucky  was  in  the  van.  Not  only  in  providing  for  the 
participation  of  the  people,  but  in  actually  consulting  them,  it  led  all 
the  states  except  Massachusetts  and  New  Hampshire. 

The  second  reference  to  the  people  as  required  by  the  constitu- 
tion was  made  in  1798,  with  the  result  that  a  still  larger  majority  for 
a  convention  was  disclosed,2  though  the  returns  were  both  times  in- 
complete. In  the  following  year,  delegates  were  accordingly  chosen, 
and  the  convention  met  at  Frankfort  and  proceeded  to  "ordain  and 
establish" 3  a  constitution.  The  provision  as  to  future  constitutional 
changes  was  retained  in  substance,  including  the  double  consultation 
of  the  electorate,  except  that  the  latter  could  be  made  at  any  session 
of  the  legislature,  and  was  not  limited,  as  in  the  first  instrument,  to 
a  single  year.4  The  Kentucky  constitution-makers  appear  to  have 
thought  that  since  the  people  were  twice  consulted  in  calling  the 
convention,  its  labors  would  not  need  a  review  at  their  hands. 

The  constitution  of  1799  was  a  more  democratic  instrument  than 
its  predecessor.  It  abolished  the  electoral  college,  apparently  bor- 
rowed from  Maryland,5  which  chose  not  only  the  senators  as  in  the 
last  named  state,  but  also  the  governor,  and  these  officials  were  made 
elective.  The  instrument  appeared  also  to  be  satisfactory  to  the 
people,  for  it  was  not  until  almost  a  half  century  later  that  advantage 
was  taken  of  the  right  to  appeal  to  them  for  a  new  constitution.  In 

1  It  received  5446  out  of  a  total  of  9814.     Collins,  "History  of  Kentucky"  (Louis- 
ville, 1877),  845. 

2  On  the  face  of  the  returns  there  were  8804  in  favor  of  a  convention  out  of  a  total 
of  11,853.    Eight  counties  failed  to  vote  and  two  others  neglected  to  make  returns.    Id. 

3  Preamble.  4  Art.  IX.  8  See  post,  230. 


POPULAR   RATIFICATION    IN   THE    SOUTH  2O/ 

1847  and  1848  the  question  was  submitted,  and  the  result  each  time 
was  a  large  majority  in  favor  of  a  convention.1  The  legislative  act  in 
pursuance  thereof  did  not,  however,  require  the  submission  of  the 
instrument  to  be  framed,  but  merely  called  the  convention  for  the 
purpose  mentioned  in  both  preceding  instruments  of  "  re-adopting, 
amending  or  changing  the  constitution."  2  Nevertheless  the  con- 
vention that  met  at  Frankfort  in  1850,  influenced,  no  doubt,  by  the 
example  of  other  Southern  states  as  well  as  by  its  own  early  prece- 
dents, submitted  its  work  to  the  people,  who  expressed  their  ap- 
proval by  no  uncertain  majority.3  It  is  true  that  the  convention 
afterward  reassembled  and  adopted  certain  amendments,4  but  the 
main  part  of  the  instrument  was  passed  upon  by  the  voters,  and 
Kentucky  thus  added  actual  popular  ratification  to  its  long  experience 
in  consulting  the  people.  The  state  has  ever  since  adhered  to  this 
practice,  and  the  present  constitution,  which  was  ratified  by  the 
voters  in  1891,  provides5  for  submitting  all  amendments  and  pro- 
posals for  conventions,  though  it  does  not  expressly  require  popular 
approval  for  future  constitutions. 

C.    Tennessee 

We  have  already  followed  the  constitutional  development  of  the 
trans-Allegheny  settlements  of  Tennessee  up  to  the  close  of  their 
period  of  local  constitution-making.  This  was  succeeded  by  an  era 
of  territorial  government,  in  which,  for  about  seven  years,  the  region 
formed  "the  territory  of  the  United  States  of  America  south  of  the 
river  Ohio."  6  In  November,  1795,  William  Blount,  governor  of  this 

1  In  1847,  92,639  out  of  137,311 ;  in  1848,  101,828  out  of  a  total  of  141,620.     Col- 
lins, "History  of  Kentucky,"  890. 

2  Kentucky  Acts,  1848-1849  (Frankfort,  1849),  Chap.  XXXVII,  sec.  i. 

3  Jameson,  "  Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  650.     The  vote 
for  the  constitution  was  51,351  out  of  91,955.     Collins,  "History  of  Kentucky,"  893. 

4  "It  is  said  that  the  convention  of  1849  and  1850  after  submitting  their  work  to 
the  people,  made  material  amendments  to  that  constitution  as  ratified  by  the  people. 
That  is  true;   but  the  convention  of  1849-1850  had  that  power,  because  their  agency 
was  unlimited ;  the  people  did  not  restrict  them  in  their  agency."     Miller  v.  Johnson, 
92  Ky.  604. 

6  Kentucky  Constitution,  1891,  sees.  256-258. 

6  Ramsey,  "Annals  of  Tennessee"  (Philadelphia,  1860),  Chap.  VII.  The  Act 
providing  for  its  government  was  approved  May  26,  1790.  See  Poore,  "Charters  and 
Constitutions,"  II,  1667. 


208  THE  PEOPLE'S   LAW 

territory,  called  an  election  for  delegates  to  a  convention,  "for  the 
purpose  of  forming  a  constitution  or  permanent  form  of  govern- 
ment." l  The  convention  met  at  Knoxville  in  January,  1796,  and 
among  its  distinguished  members  were  Andrew  Jackson,  future  presi- 
dent of  the  United  States,  and  James  Robertson,  veteran  framer  of 
the  compacts  of  Watauga  and  Nashborough.  These  earlier  docu- 
ments evidently  influenced  the  convention  in  framing  its  draft,  for 
some  of  their  most  peculiar  provisions  were  retained,2  while  others 
were  proposed  and  discussed.3  In  form  also  the  new  instrument 
strongly  resembled  the  primitive  covenant.  Its  preamble  recites  that 

"We  the  people  ...  do  ordain  and  establish  the  following  constitution  .  .  . 
and  do  mutually  agree  with  each  other  to  form  ourselves  into  a  free  and  inde- 
pendent state." 

And  it  closes  with  the  recital :  — 

"In  testimony  hereof,  we  have  hereunto  subscribed  our  names.'7 

Indeed,  Jefferson  declared  this  instrument  "the  least  imperfect 
and  most  republican"  of  the  state  constitutions. 

The  Knoxville  convention  did  not  actually  submit  its  work  to  the 
voters,4  but  it  provided  for  consulting  them  in  the  future  with  reference 
to  constitutional  changes,  by  adopting  this  clause : — 

"That  whenever  two-thirds  of  the  general  assembly  shall  think  it  necessary 
to  amend  or  change  this  constitution,  they  shall  recommend  to  the  electors,  at 
the  next  election  for  members  to  the  general  assembly,  to  vote  for  or  against  a 
convention ;  and  if  it  shall  appear  that  a  majority  of  all  the  citizens  of  the  State, 
voting  for  representatives,  have  voted  for  a  convention,  the  general  assembly 
shall,  at  their  next  session,  call  a  convention  to  consist  of  as  many  members  as 
there  be  in  the  general  assembly,  to  be  chosen  in  the  same  manner,  at  the  same 
place  and  by  the  same  electors  that  chose  the  general  assembly,  who  shall  meet 
within  three  months  after  the  said  election,  for  the  purpose  of  revising,  amending 
or  changing  the  constitution."  5 

This,  it  will  be  seen,  is  a  distinct  advance  beyond  the  Kentucky 
provision  of  four  years  previous,  for  it  brings  the  system  nearer  the 

1  Ramsey,  649. 

2  Such  as  the  exclusion  of  ministers  and  atheists  from  office,  Art.  VIII ;   Poore, 
"  Charters  and  Constitutions,"  II,  667. 

3  Ramsey,  654. 

4  Doubtless  a  full  report  of  its  proceedings  would  throw  much  light  on  the  reasons 
for  this.    But  unfortunately  "the  debates  of  the  convention  are  not  given  in  the  Journal 
and  are  not  to  be  found  elsewhere."  —  Ramsey,  652. 

6  Art.  X,  sec.  3;  Poore,  II,  1673. 


POPULAR  RATIFICATION   IN  THE   SOUTH  209 

people  by  dispensing  with  the  second  submission,  nor  was  the  privi- 
lege limited  to  a  single  instance.  We  shall  find  this  Tennessee  plan 
widely  adopted  by  the  states  both  South  and  North. 

The  next  generation  saw  popular  constitution-making  firmly 
established  in  Tennessee.  In  1833,  the  legislature  passed  an  act 
calling  a  convention  to  meet  the  following  year,  "for  the  purpose  of 
revising,  amending  or  altering  the  present,  or  forming  a  new  constitu- 
tion." 1 

The  constituent  act  itself  made  no  provision  for  submitting  to 
the  people  the  constitution  to  be  framed  by  this  body.  But  a  sepa- 
rate resolution  was  adopted  which  embodied  the  principle,  and  its 
language  is  significant. 

"Whereas,"  it  recites,  "the  history  of  our  country  has  taught  us  that  too 
much  caution  cannot  be  exercised  when  we  are  brought  to  act  upon  a  subject  of 
such  importance,  and  likely  to  change  the  whole  features  of  our  State  government ; 
and,  in  order  better  to  secure  and  protect  the  rights  of  the  people,  and  to  retain 
the  balance  of  power  in  their  hands,  and  that  a  fair  and  full  expression  may 
be  had  of  their  approbation  of  the  provisions  of  the  next  constitution;  it  is 
therefore 

"Resolved,  by  the  General  Assembly  of  the  State  of  Tennessee, 
"That  it  is  the  opinion  of  this  General  Assembly,  and  they  hereby  most 
respectfully  recommend  to  the  people  to  urge  upon  the  candidates  for  the  con- 
vention in  the  several  districts,  and  upon  the  delegates  elected  to  said  convention, 
that  when  the  new  constitution  shall  have  been  formed,  it  shall  be  submitted  back 
to  the  people  to  receive  their  sanction  by  a  majority  of  the  votes  in  the  State, 
before  it  shall  become  the  established  constitution. " 3 

The  instrument  thus  framed  received  the  assent  of  the  electors  by 
a  vote  of  considerably  more  than  two  to  one,3  and  the  policy  thus 
renewed  has  since  been  uniformly  followed. 

On  the  eve  of  the  Civil  War,  the  legislature  in  referring  to  the 
people  the  question  of  calling  a  convention,  provided  that  no  action 
toward  a  change  of  relations  with  the  Union  should  be  valid  until 
ratified  by  a  vote  equal  to  a  majority  of  that  cast  at  the  preceding 
gubernatorial  election.4  And  even  after  the  commencement  of  hostili- 

1  Tennessee  Laws  of  1833  (Nashville,  1833),  Chap.  LXXVI. 

2  Id.  123,  124. 

3  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  650. 

4  Tenney,  "Military  and  Naval  History  of  the  Rebellion  in  the  United  States," 
44  et  seq.     The   proposal   to   call   such  a   convention   was  defeated   by  a   vote  of 
12,000.     Id. 


210  THE   PEOPLE'S    LAW 

ties,  when  the  state  was  practically  in  the  hands  of  the  military,  the 
legislature,  which  in  special  session  sat  in  secret,  after  voting  to  enter 
into  a  military  league  with  the  Confederacy,  still  felt  compelled  to 
submit  the  secession  ordinance  to  a  popular  vote.1 

Thus  the  results  of  the  work  of  the  pioneers  of  Tennessee,  as 
evidenced  by  the  several  instruments  which  are  themselves  the  pioneer 
American  constitutions,  are  seen  in  the  later  history  of  the  common- 
wealth. For  it  was  not  accidental  that  the  state  which  became  the 
successor  of  Watauga,  Nashborough  and  Franklin  has,  with  one  ex- 
ception, submitted  each  of  its  five  constitutions  to  its  people,  and, 
longest  continuously  of  any  Southern  state,  has  adhered  to  the  actual 
practice  of  popular  ratification. 

D.    Mississippi 

We  have  already  caught  a  glimpse2  of  the  constitutional  begin- 
nings of  Mississippi.  In  1798,  the  region  was  erected  into  a  territory 
of  the  United  States3  and  remained  in  that  condition  for  nearly  a 
score  of  years.  But  in  1817,  Congress  passed  an  act  authorizing  it 
to  become  a  state.4  This  "enabling  act"  was  one  of  a  series  passed 
during  that  period,5  which  practically  precluded  the  employment  of 
popular  ratification  by  authorizing  a  convention  "to  form  a  constitu- 
tion and  state  government."  6  Delegates  were  elected  in  June,  1817, 
and  in  the  following  month  the  convention  assembled  at  the  town  of 
Washington,  near  Natchez.7 

The  instrument  framed  by  this  body  bears  traces  of  the  political 
philosophy  of  its  early  settlers,  and  shows  an  imitation  of  the  Ten- 
nessee instrument.  The  first  section  declared  "that  all  freemen, 
when  they  form  a  social  compact,  are  equal  in  rights,"  8  while  both 
unbelievers  and  ministers  are  disqualified  from  office-holding9  after  the 
manner  of  the  "Frankland"  instrument.10  The  constitution  was  not 

1  Tenney,  "  Military  and  Naval  History  of  the  Rebellion  in  the  United  States," 
44  et  seq. 

2  Ante,  Chap.  VIII.  *  Id.  1052. 

3  Poore,  "  Charters  and  Constitutions,"  II,  1049.  B  See  post,  Chap.  XIX. 

6  Enabling  Act,  sec.  4 ;   Poore,  II,  1053. 

7  There  were  forty-seven  delegates,  among  whom  was  Joseph  E.  Davis,  an  older 
brother  of  Jefferson  Davis.  —  Lowry  and  McArdle,  "History  of  Mississippi"  (Jack- 
son, 1891),  236. 

8  Poore,  II,  1054.  9  Id.  1063;  Art.  VI,  sees.  7,  8.  10  Ante,  127. 


POPULAR   RATIFICATION   IN   THE   SOUTH  211 

submitted  to  the  people,1  but  the  Tennessee  plan  of  consulting  them 
was  incorporated  almost  verbatim  into  the  new  instrument,2  and  a 
few  years  later  the  people  were  given  the  opportunity  of  applying  it. 
This  constitution,  with  all  its  democratic  features,  restricted  the 
suffrage  to  taxpayers,3  required  the  governor  to  be  a  freeholder,4  and 

1  There  has  been  considerable  discussion  of  this  point,  but  the  conclusion  stated  in 
the  text  is  supported  by  the  overwhelming  weight  of  the  evidence.      Mr.  Poore  makes 
the  statement  that  this  constitution  was  submitted   ("Charters  and  Constitutions  of 
the  United  States"  (Washington,  1877),  II,  1054,  note).    A  similar  statement  is  made  by 
Judge  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1877),  497,  note,  651, 
and  Professor  Thayer,  "Cases  on  Constitutional  Law"  (Cambridge,  1895),  I,  251,  note. 

On  the  other  hand,  in  the  convention  which  framed  the  present  constitution  of 
Mississippi  (1890),  the  committee  on  Judiciary  presented  a  report  in  which  it  was 
declared  :  — 

"  The  doctrine  (of  the  necessity  of  popular  ratification)  has  never  prevailed  in  this 
state  and  has  here  no  sanction  from  usage.  The  state  was  admitted  to  the  union,  1817, 
with  a  constitution  made  final  and  absolute  by  the  convention  which  framed  it."  — 
Journal  of  the  Mississippi  Constitutional  Convention  (Jackson,  1890),  149. 

So  the  Supreme  Court  of  Mississippi  in  a  celebrated  case  bases  its  argument  and 
decision  in  part  upon  the  premise  that  the  only  constitution  of  Mississippi  which  had 
been  submitted  to  the  people  was  that  adopted  in  the  reconstruction  era.  The  opinion 
states  :  — 

"  The  general  judgment  of  the  people  of  our  own  state  has  practically  and  strik- 
ingly repudiated  the  theory  from  the  foundation  of  the  government.  The  usage  in 
Mississippi,  with  a  solitary  exception  in  an  extraordinary  conjuncture  of  public  affairs, 
gives  it  no  support.  That  the  government  has  lived  from  its  birth  to  this  hour  with  no 
valid  fundamental  law  on  which  to  rest,  except  for  a  brief  interval,  cannot  be  true." 
—  Sproule  v.  Fredericks,  69  Miss.  905. 

Moreover,  even  counsel  who  were  contending  in  that  case  for  the  necessity  of  sub- 
mission, expressly  admitted  in  their  argument  that  "neither  the  constitution  of  1817, 
nor  that  of  1832,  was  submitted  for  ratification."  (Id.  903.) 

Lowry  and  McArdle,  in  their  account  of  the  convention  ("  History  of  Mississippi," 
237-241),  make  no  mention  of  any  attempt  at  submission,  while  another  local  historian 
expressly  declares :  — 

"  No  proposition  was  made  in  the  Convention  to  submit  the  Constitution  to  a  vote 
of  the  people  for  ratification.  It  went  into  effect  on  the  day  it  was  signed,  August  15, 
1817.  The  original  is  in  the  office  of  the  Secretary  of  State."  — J.  L.  Power,  Secretary 
of  State,  in  "Chapters  on  State  History"  in  Magnolia  Gazette,  September  i,  1897, 
quoted  in  Oberholtzer,  "The  Referendum  in  America"  (2d  Ed.,  New  York,  1900),  112. 

Both  Borgeaud  ("Adoption  and  Amendment  of  Constitutions,"  Hazen's  Trans., 
New  York,  1895,  IS°)  and  Oberholtzer  ("The  Referendum  in  America,"  2d  Ed.,  New 
York,  1900,  112)  base  their  argument  that  no  actual  instance  of  popular  ratification, 
outside  of  New  England,  occurred  during  this  period,  on  the  premise  that  this  first 
Mississippi  constitution  was  merely  proclaimed,  and  this  view  seems  to  be  supported 
by  the  clear  preponderance  of  the  evidence. 

Added  to  the  foregoing  is  the  fact  that  the  enabling  act  not  only  did  not  authorize, 
but  by  implication,  at  least,  forbade  submission. 

2  Poore,  II,  1064.  »  Art.  HI,  sec.  i ;    Poore,  II,  1056. 
4  Art.  IV,  sec.  3;  Poore,  II,  1059. 


212  THE   PEOPLE'S    LAW 

provided  for  the  appointment  of  judges.1  By  1830,  these  and  other 
features  had  created  considerable  sentiment  in  favor  of  revision,2  and 
in  that  year  the  General  Assembly  passed  an  act  by  which  the  people 
were  "recommended"  to  vote  on  the  question  of  calling  a  convention.3 
The  poll  being  favorable,  another  act  was  passed  providing  for  the 
convention,  and  delegates  were  duly  chosen  who  assembled  at  Jack- 
son in  September,  1832.  This  convention  seems  to  have  devoted 
itself  mainly 4  to  eliminating  the  objectionable  features  of  the  instru- 
ment of  1817,  but  it  also  marks  a  distinct  advance  in  the  develop- 
ment of  popular  ratification  in  Mississippi.  One  of  the  delegates, 
Quitman  by  name,  "the  day  before  the  Constitution  was  adopted, 
offered  an  amendment  in  the  shape  of  a  resolution,  submitting  that 
instrument  to  the  vote  of  the  people  for  their  ratification  or  rejection. 
This  proposition  was  lost  by  nays  twenty-six  to  nineteen  yeas."  5 
But  though  popular  ratification  was  not  provided  for  that  instrument, 
notwithstanding  nearly  one-half  of  the  delegates  expressed  a  desire 
therefor,  the  convention  established  that  system  for  the  future  by 
incorporating  the  following  provision : 6  — 

"Whenever  two-thirds  of  each  branch  of  the  legislature  shall  deem  any  change, 
alteration,  or  amendment  necessary  to  this  constitution,  such  proposed  change, 
alteration  or  amendment  shall  be  read  and  passed  by  a  majority  of  two-thirds 
of  each  house  respectively,  on  each  day,  for  three  several  days.  Public  notice 
thereof  shall  then  be  given  by  the  secretary  of  state,  at  least  six  months  preceding 
the  next  general  election  at  which  the  qualified  electors  shall  vote  directly  for  or 
against  such  change,  alteration  or  amendment ;  and  if  it  shall  appear  that  a  major- 
ity of  the  qualified  electors  voting  for  members  of  the  legislature  shall  have  voted 
for  the  proposed  change,  alteration  or  amendment,  then  it  shall  be  inserted  by 
the  next  succeeding  legislature  as  a  part  of  this  constitution,  and  not  otherwise." 

This  was  evidently  copied  after  the  Alabama  provision  which  had 
been  adopted  in  1819,  but  was  an  improvement  on  the  latter,  in  mak- 
ing the  work  of  the  second  legislature  entirely  perfunctory,  and  leav- 
ing the  real  ratification  to  the  people.  Under  this  plan  several  amend- 
ments to  the  constitution  of  1832  were  adopted.7  But  this  was  the 
high-water  mark  of  popular  ratification  in  Mississippi.  With  the 
anti-slavery  agitation  and  the  approach  of  the  war,  the  movement 
was  checked  even  more  abruptly  than  in  the  other  states  of  the  South. 

1  Art.  V,  sec.  2,  Poore,  II,  1061. 

2  Lowry  and  McArdle,  "History  of  Mississippi,"  266,  271. 

3  Id.  267.  4  Id.  272.  »  Id. 

8  Poore,  "Charters and  Constitutions,"  II,  1077,  1078.  7  Id.  II,  1078,  1079. 


POPULAR   RATIFICATION   IN  THE   SOUTH  213 

The  secession  amendments  of  1861  were  not  submitted,  nor  were  those 
of  I865.1  The  reconstruction  instrument  of  1868,  submitted  under 
the  compulsion  of  the  Federal  government,  was  at  first  rejected,  but 
upon  a  second  submission  was  adopted.2  When,  however,  the  limi- 
tations imposed  by  that  instrument  upon  restriction  of  the  suffrage 3 
had  expired,  Mississippi  led  the  way  in  the  retrogressive  Southern 
movement  for  unsubmitted  constitutions.4 

E.     Alabama 

Upon  the  admission  of  Mississippi,  in  1817,  the  region  to  the 
east  of  it  was  organized  as  a  territory  under  the  name  of  Alabama.5 
Two  years  later  it  was  admitted  as  a  state.  Its  enabling  act,6  like 
others  of  that  period,  leaving  it  to  a  convention  "to  form  a  constitu- 
tion," delegates  elected  to  this  body  met  at  Huntsville  in  the  summer 
of  1819. 

The  new  commonwealth  was  then  being  settled  by  immigrants 
from  neighboring  states,7  and  the  convention  roll 8  shows  the  names  of 
none  who  were  not,  apparently,  of  American  birth.  Among  the  dele- 
gates was  William  R.  King,  afterward  Vice-President  of  the  United 
States.  He  was  of  Scotch-Irish  and  Huguenot  ancestry,  a  lawyer  by 
profession,  and,  having  been  a  member  of  Congress  from  North 
Carolina,9  soon  became  prominent  in  the  affairs  of  his  adopted  state. 
In  the  convention  he  was  a  member  of  the  committee  to  frame  the 
constitution,  and  was  one  of  a  subcommittee  of  three  appointed  to 
reduce  it  to  form.10 

Another  prominent  member  of  this  committee  was  Clement  C. 
Clay,  a  Virginian  by  birth,  but  reared  in  eastern  Tennessee,  where  he 
was  educated  and  admitted  to  the  bar.11 

The  instrument  which  these  men  prepared  was  not  submitted  to 

1  Poore,  II,  1079,  and  note. 

2  Id.  1081,  note.     It  is  interesting  to  note  that  this  document  retained  the  amend- 
ment clause  (Art.  XIII)  of  1832,  except  that  voting  on  separate  amendments  was  ex- 
pressly authorized. 

8  I.e.  forbidding  any  property  or  educational  test  prior  to  1885,  Art.  XIV, 
Poore,  II,  1094. 

4  See  post,  Chap.  XX. 

5  Pickett,  "History  of  Alabama"  (Charleston,  1851),  II,  374;  Poore,  "Charters 
and  Constitutions,"  I,  27. 

8  Poore,  I,  29.  7  Pickett,  "History  of  Alabama,"  II,  385.         8  Id.  401,  402. 

8  Id.  410.  lfl  Id.  412,  413.  "  Id.  418,  419. 


214  THE  PEOPLE'S   LAW 

the  people.  But  it  enjoys  the  distinction  of  being  the  first  constitu- 
tion outside  of  New  England  to  provide  for  the  submission  of  future 
amendments.  This  provision  was  as  follows :  — 

"The  general  assembly  whenever  two-thirds  of  each  house  shall  deem  it 
necessary,  may  propose  amendments  to  this  constitution,  which  proposed  amend- 
ments shall  be  duly  published  in  print,  at  least  three  months,  before  the  next 
general  election  of  representatives,  for  the  consideration  of  the  people,  and  it  shall 
be  the  duty  of  the  several  returning  officers,  at  the  next  general  election  which  shall 
be  held  for  representatives,  to  open  a  poll  for,  and  make  a  return  to  the  secretary 
of  state  for  the  time  being  of,  the  names  of  all  those  voting  for  representatives, 
whcr  have  voted  on  such  proposed  amendments,  and  if  thereupon  it  shall  appear 
that  a  majority  of  all  the  citizens  of  this  state,  voting  for  representatives,  have 
voted  in  favor  of  such  proposed  amendments,  and  two-thirds  of  each  house  of 
the  next  general  assembly,  shall,  after  such  an  election,  and  before  another,  ratify 
the  same  amendments  by  yeas  and  nays,  they  shall  be  valid,  to  all  intents  and 
purposes,  as  part  of  this  constitution."  1 

Borgeaud  says  of  the  above  provision :  — 

"The  constitution -framers  of  Alabama,  more  familiar  with  the  strategies  of 
the  Indians  than  with  the  distinctions  of  political  science,  thought  they  could 
unite  the  Connecticut  plebiscite  and  the  general  election  of  Maryland."  2 

It  is  by  no  means  certain,  however,  that  this  plan  was  borrowed, 
even  in  part,  from  Connecticut.  It  differs  materially,  both  in  phrase- 
ology and  details  from  that  of  the  New  England  instrument,  and  was 
more  probably  a  development  of  the  Kentucky  plan,3  and  an  applica- 
tion thereof  to  amendments  instead  of  to  the  calling  of  conventions. 
In  spite  of  the  cumbrous  requirement  of  legislative,  after  popular,  ap- 
proval, amendments  were  ratified4  in  1830,  1846,  and  1850,  but  an- 
other, submitted  at  the  session  of  1844-1845  and  approved  by  the 
people,  was  declared  invalid  by  reason  of  a  technical  error  in  the  sub- 
sequent act.5  Indeed,  this  constitution  met  the  needs  of  Alabama 
until  the  reconstruction  period.  Neither  secession 6  nor  civil  war  had 

1  Constitution  of  1819,  Supplement  to  Art.  VI;  Poore,  "Charters  and  Constitu- 
tions," I,  44. 

2  "Adoption  and  Amendment  of  Constitutions"   (Hazen's  Trans.,  New  York, 
1895),  148. 

3  A  comparison  of  the  provision  with  that  of  Kentucky  (see  ante,  205)  will  disclose 
considerable  similarity  in  language.     Note,  e.g.  the  requirement  for  ratification  by 
a  "majority  of  all  the  citizens  .  .  .  voting  for  representatives." 

4  Poore,  I,  46,  47.  6  See  Collier  v.  Frierson,  24  Ala.  100. 

8  The  convention  of  1861  merely  passed  an  ordinance  of  secession  and  made  such 
changes  "as  were  rendered  necessary  by  the  transfer  of  allegiance."  Poore,  I,  48,  note. 


POPULAR   RATIFICATION   IN   THE   SOUTH  215 

the  effect  of  displacing  it  and  while  the  ordinance  of  secession  did  not 
go  before  the  people,  there  was  a  strong  movement  to  send  it  there.1 
And  so  thoroughly  did  the  plan  of  popular  ratification  become  estab- 
lished, that  all  subsequent  constitutions  except  the  short-lived  instru- 
ment of  1865  have  been  submitted  to  the  people.2  Even  in  1901, 
during  a  reactionary  movement  in  which  her  neighbors  were  pro- 
claiming new  constitutions,  Alabama  submitted  hers  to  an  electorate, 
part  of  whom  were  to  be  disfranchised  thereby. 

There  is  no  more  creditable  chapter  in  the  history  of  popular 
ratification  in  Alabama  than  that  contributed  by  this,  its  most  recent 
convention,  which  assembled  at  Montgomery  in  May,  1901.  Al- 
though the  proposal  was  made  early  in  its  deliberations  to  proclaim 
its  work  in  force  without  a  submission  to  the  people,  this  was  re- 
pudiated, and  not  only  was  the  enabling  act  followed  by  referring 
the  new  instrument  to  the  people,  but  the  provisions  which  that  act 
required  to  be  inserted  in  the  constitution  were,  in  the  main,  incor- 
porated.3 The  fact  that  nearly  two-thirds  of  the  members  were 
lawyers4  probably  explains  why  the  course  followed  was  so  dif- 
ferent from  that  of  the  contemporary  Virginia  convention,  composed 
largely  of  laymen  who  were  not  so  likely  to  feel  themselves  bound 
by  precedent  or  legislative  enactment.5  The  convention  appears  to 
have  taken  a  somewhat  backward  step  by  endeavoring  to  empower 
future  conventions  to  perform  such  acts  as  they  might  deem  necessary 
in  revising  the  constitution.6  But  the  history  of  Alabama,  like  that 
of  Tennessee,  shows  on  the  whole  a  consistent  and  commendable 
adherence  to  the  policy  of  appealing  to  the  people,  so  clearly  recog- 
nized in  its  first  fundamental  code. 

1  In  the  convention,  called  without  previous  consultation  of  the  people,  and  meet- 
ing January  7,  1861,  at  Montgomery,  a  proposal  to  submit  its  action  to  a  popular  vote 
was  defeated.  "Nicholas  Davis  of  Huntsville  declared  his  belief  that  the  people  of 
North  Alabama  would  never  abide  the  action  of  that  convention  if  denied  the  right  of 
voting  upon  it.  Mr.  Yancy  thereupon  denounced  the  people  of  North  Alabama  as 
tories,  traitors  and  rebels  and  said  they  ought  to  be  coerced  into  a  submission  to  the 
decree  of  the  convention.  Mr.  Davis  replied  that  North  Alabama  .  .  .  would  meet 
them  upon  the  line  and  decide  the  issue  at  the  point  of  the  bayonet."  —  Tenney, 
"Military  and  Naval  History  of  the  Rebellion  in  the  United  States,"  9. 

It  was  in  this  convention  that  Yancy  revived  the  delegate  theory,  declaring,  "All 
our  acts  are  supreme,  without  ratification,  because  they  are  the  acts  of  the  people  acting 
in  their  sovereign  capacity." — History  and  Debates  of  the  Convention  of  the  People 
of  Alabama  (1861),  114.  *  Poore,  I,  60,  76. 

3  See  McKinley,  "Two  New  Southern  Constitutions,"  Political  Science  Quarterly, 
XVin,  507,  509,  510.  *  Id.  481.  5  Id.  8  Id.  510. 


216  THE   PEOPLE'S   LAW 

F.     Virginia 
i.     The  Preliminary  Movement 

We  have  seen  that  the  first  recorded  proposal  for  the  submission 
of  a  state  constitution  to  a  popular  vote  was  made  in  Virginia,  and 
that  its  influence,  though  slight  at  the  time,  was  felt  in  the  later  con- 
stitutional history  of  that  commonwealth.  This,  however,  was  not 
the  sole  or  even  the  principal  source  from  which  popular  ratification 
finally  came  into  Virginia.  The  movement  which  brought  it  about 
originated,  significantly  enough,  in  a  portion  of  the  Old  Dominion, 
which  had  been  settled  largely  by  the  sturdy  stock  whose  constitu- 
tional achievements  in  the  early  communities  of  the  South  have 
already  been  traced.1 

It  has  been  shown  how,  during  the  eighteenth  century,  western 
Virginia  was  colonized  by  the  Scotch-Irish,  who  were  mainly  Presby- 
terians.2 In  the  early  years  of  the  nineteenth  century  this  region 
was  the  scene  of  a  new  religious  movement,  inaugurated  by  two 
Scotch-Irishmen,  Thomas  Campbell  and  his  son  Alexander.  One 
of  their  chief  colaborers,  whose  field  lay  farther  west  in  Kentucky, 
was  another  of  the  same  race  bearing  the  name  of  Walter  Scott. 
From  this  movement  has  grown  the  great  religious  body  known 
as  Christians  or  Disciples,  whose  adherents  now  number  over 
a  million  and  whose  centennial  is  about  to  be  celebrated.  Their 
theology  represented  a  reaction  from  Calvinism,  but  their  polity 
was  a  direct  application  of  the  Calvinistic  theory,  and  was  strik- 
ingly similar  to  the  Puritan  form.  Each  congregation  was  made  su- 
preme, and  all  matters  were  determined  by  the  voice  of  the  individual 
members.  One  of  the  straws  indicating  the  influence  of  this  move- 
ment upon  contemporary  political  history  is  the  fact  that  the  younger 
Campbell,  who  is  generally  regarded  by  the  followers  of  the  movement 
as  its  founder,  was  a  delegate  to  the  constitutional  convention  of 
1829-1830,  whose  proceedings  we  are  shortly  to  examine,  and  took 
an  active  part  therein.3  With  settlers  of  racial,  political,  and  religious 
antecedents,  distinct  from  those  of  eastern  Virginia,  it  is  not  strange 
that  the  portion  of  the  commonwealth  lying  west  of  the  Alleghenies 
has  had,  from  the  first,  an  identity  and  history  of  its  own.  The  con- 

1  Ante,  Chap.  VIII.      2  Lewis,  "  History  of  West  Virginia"  (Philadelphia,  1889),  70. 
3  Proceedings  and  Debates  of  the  Virginia  State  Convention,  1829-1830  (Rich- 
mond, 1830),  43. 


POPULAR  RATIFICATION   IN   THE   SOUTH  2 1/ 

stitution  of  1776  was  framed  mainly  with  reference  to  eastern  Vir- 
ginia, and  it  retained  many  of  the  aristocratic  features  of  the  colonial 
regime.  The  right  of  suffrage,  for  example,  was  limited  to  free- 
holders, just  as  it  had  been  for  a  century.1  To  the  people  of  the 
western  region,  with  their  more  democratic  traditions  and  freer  en- 
vironment, these  restrictions  were  exceedingly  offensive.  As  the  popu- 
lation increased,  this  dissatisfaction  was  augmented  by  the  inequality 
of  representation  imposed  by  the  old  constitution  under  a  system 
which  the  state  had  now  outgrown.2  Meanwhile,  in  1792,  the  settlers 
were  given  an  object  lesson  by  the  direct  consultation  of  the  people 
on  the  calling  of  a  convention  in  Kentucky,  which  had  just  been 
formed  out  of  Virginia,  and  the  effect  of  this  must  have  been  con- 
siderable in  stimulating  the  demand  for  a  popular  constitution. 

As  early  as  the  second  decade  of  the  nineteenth  century,  there- 
fore, a  movement  was  inaugurated  in  this  region  for  a  new  constitu- 
tion. It  was  met  with  determined  opposition  by  the  slave-holding 
class,  and  generally  by  the  beneficiaries  of  the  old  order,  who  looked 
with  alarm  upon  the  proposal  to  introduce  a  large  element  of  non- 
freeholders  into  the  electorate.  Here  also,  as  elsewhere,  the  objection 
of  unconstitutionality  was  raised.  The  constitution  of  1776  made 
no  provision  for  its  own  displacement  or  amendment,  and  it  was  con- 
sequently argued  that  a  convention,  and  especially  a  new  constitu- 
tion for  that  state,  would  not  be  lawful.3  The  contest  lasted  for  more 
than  a  dozen  years,4  and,  after  many  unsuccessful  attempts  before 
the  legislature,  that  body,  in  1828,  passed  an  act,5  providing  as 
follows :  — 

"Whereas,  it  is  represented  to  the  General  Assembly  that  a  portion  of  the 
good  people  of  this  Commonwealth  are  desirous  of  amending  the  constitution 

1  Chandler,  "Suffrage  in  Virginia,"  Johns  Hopkins  University  Studies,  XIX,  287. 
In  1677  the  crown  sent  instructions  to  the  Virginia  governor  "to  take  care  that  the  mem- 
bers of  the  Assembly  be  elected  only  by  freeholders  as  being  more  agreeable  to  the 
customs  of  England."  —  Lewis,  "History  of  West  Virginia,  319,  320. 

2  Chandler,  "Representation  in  Virginia,"  Johns  Hopkins  University  Studies,  XIV, 
274  et  seq. 

3  Jameson,  "Constitutional   Conventions"  (4th  Ed.,  Chicago,  1887),  211.     The 
author  adds,  "  But  the  objection  has  commonly  been  urged  by  a  minority,  whose  party 
or  other  interests  inclined  them  to  look  with  disfavor  upon  any  change  of  the  existing 
Constitution." 

4  For  a  sketch  of  the  period  see  Chandler,  "  Representation  in  Virginia,"  Johns 
Hopkins  University  Studies,   XIV,  274  et  seq.;  "Suffrage  in  Virginia,"  id.  XIX,  287 
et  seq.  6  Acts  of  the  General  Assembly  of  Virginia  (1827-8),  i& 


2l8  THE   PEOPLE'S   LAW 

of  this  state,  and  this  Assembly  feel  it  their  duty  to  ascertain  the  wishes  of  the 
people  thereon: 

i. —  Be  it  therefore  enacted,  That  it  shall  be  the  duty  of  the  several  sheriffs, 
and  other  officers,  authorized  to  conduct  elections  within  this  Commonwealth 
at  the  time  and  place  of  holding  their  respective  elections  for  delegates  to  the 
General  Assembly,  in  April  next,  to  open  a  separate  poll  for  the  purpose  of  taking 
the  sense  of  the  people  upon  the  question,  whether  they  desire  a  convention  or 
not." 

But  the  "people"  whose  "sense"  was  thus  to  be  taken  were  re- 
stricted by  a  subsequent  clause  of  the  act  to  those  "qualified  accord- 
ing to  the  existing  laws  of  the  commonwealth  to  vote  for  delegates  to 
the  General  Assembly." 

The  proposal  received  a  majority  of  more  than  5000  in  a  total 
vote  of  less  than  40,000,*  and  the  following  year  the  general  as- 
sembly passed  "an  act  to  organize  a  convention,"  2  providing  for  the 
election  of  delegates,  the  framing  of  an  amended  constitution,  a 
proclamation  thereof  by  the  governor,  and  a  distribution  of  copies 
to  the  clerks  of  county  courts.  It  was  further  enacted  that  it  should 

"  be  the  duty  of  the  said  sheriffs,  at  the  election  aforesaid,  to  receive  the  votes  of 
all  such  persons  as  shall  by  the  amended  Constitution,  be  authorized  to  vote  for 
members  of  the  most  numerous  branch  of  the  Legislature,  or  by  the  said  Con- 
vention, shall  be  authorized  to  vote  on  the  ratification  or  rejection  of  the  new 
Constitution,  to  be  recorded  in  the  poll-book  hereinbefore  required  to  be  by 
them  opened."3 

It  is  evident  from  this  that  the  struggle  for  popular  ratification  in 
Virginia  had  not  yet  terminated.  The  constituent  act  did  not  really 
settle  the  question  of  popular  ratification,  i.e.  ratification  by  the  whole 
people.  The  measure  was  apparently  the  result  of  a  compromise  be- 
tween the  radical  and  conservative  elements,  and  merely  determined 
that  the  new  constitution,  when  framed,  should  be  submitted  to 
some  of  the  people,  leaving  it  to  the  convention  to  decide  to  what 
extent  the  ratification  should  be  popular. 

2.     The  Convention 

assembled  on  May  5,  1829,  and  was,  like  others  of  that  period,  a 
notable  body.  Its  membership  included  the  Chief  Justice  of  the 
Federal  Supreme  Court  (Marshall),  and  two  Ex-Presidents,  Madison 

1  Proceedings  and  Debates  of  the  Virginia  Convention  of  1829-1830,  Preface. 
3  Acts  of  the  General  Assembly  of  Virginia  (Richmond,  1829),  Chap.  XV. 
3  Id.  sec.  19,  p.  21. 


POPULAR   RATIFICATION    IN   THE    SOUTH  2IQ 

and  Monroe,  the  latter  of  whom  was  elected  President  of  the  con- 
vention. The  question  regarding  submission  does  not  seem  to  have 
entered  prominently  into  its  deliberations,  though  the  debate  on  legis- 
lative representation  and  the  qualifications  for  the  franchise  prepared 
the  way  for  the  determination  of  the  final  question  as  to  the  con- 
stituency to  which  the  new  instrument  should  be  submitted. 

On  the  last  day  of  the  session,  John  Randolph  offered  the  follow- 
ing resolution :  — 

"Resolved,  That  the  amended  Constitution  adopted  by  this  Convention,  be 
submitted  on  the  respective  election  days  in  the  month  of  April  next,  to  the  per- 
sons qualified  to  vote  under  the  existing  Constitution,  for  members  of  the  General 
Assembly."1 

The  significance  of  this  resolution  will  appear  when  it  is  recalled 
that  under  the  former  and  existing  constitution  none  but  freeholders 
enjoyed  the  franchise.  On  the  other  hand,  the  instrument  which 
they  had  just  completed,  and  were  about  to  adopt,  extended  the 
right  of  suffrage  to  all  white  male  citizens  having  a  property  qualifi- 
cation, measured  generally  by  an  interest  in  land  of  the  value  of 
twenty-five  dollars,  and  also  to  housekeepers  and  heads  of  families.2 

1  Proceedings  and  Debates  of  the  Virginia  State  Convention,  1829-1830  (Rich- 
mond, 1830),  885. 

2  The  provision  of  the  constitution  of  1830  on  this  point  was  as  follows:  — 
"Every  white  male  citizen  of  the  Commonwealth,  resident  therein,  aged  twenty- 
one  years  and  upwards,  being  qualified  to  exercise  the  right  of  suffrage  according  to  the 
former  constitution  and  laws ;  and  every  such  citizen,  being  possessed,  or  whose  tenant 
for  years,  at  will  or  at  sufferance,  is  possessed,  of  an  estate  or  freehold  in  land  of  the 
value  of  twenty-five  dollars,  and  so  assessed  to  be  if  any  assessment  thereof  be  required 
by  law ;  and  every  such  citizen,  being  possessed  as  tenant  in  common,  joint  tenant  or 
partner  of  an  interest  in  or  share  of  land,  and  having  an  estate  of  freehold  therein,  such 
interest  or  share  being  of  the  value  of  twenty-five  dollars,  and  so  assessed  to  be  if  any 
assessment  thereof  be  required  by  law;  and  every  such  citizen  being  entitled  to  a  re- 
version or  vested  remainder  in  fee,  expectant  on  an  estate  for  life  or  lives,  in  land  of  the 
value  of  fifty  dollars,  and  so  assessed  to  be  if  any  assessment  thereof  be  required  by 
law,  each  and  every  such  citizen  unless  his  title  shall  have  come  to  him  by  descent,  devise, 
marriage  or  marriage  settlement,  having  been  so  possessed  or  entitled  for  six  months, 
and  every  such  citizen  who  shall  own  and  be  himself  in  actual  occupation  of  a  leasehold 
estate,  with  the  evidence  of  title  recorded  two  months  before  he  shall  offer  to  vote,  of 
a  term  originally  not  less  than  five  years,  of  the  annual  value  of  rent  of  twenty  dollars, 
and  every  such  citizen,  who  for  twelve  months  next  preceding  has  been  a  housekeeper 
and  head  of  a  family  within  the  county,  city  or  town  borough  or  election  district  where 
he  may  offer  to  vote,  and  shall  have  been  assessed  with  a  part  of  the  revenue  of  the 
Commonwealth  within  the  preceding  year,  and  actually  paid  the  same,  and  no  other 
persons,  shall  be  qualified  to  vote  for  members  of  the  general  assembly  in  the  county, 
city,  town  or  borough,  respectively,  wherein  such  land  shall  lie  or  such  housekeeper 


220  THE   PEOPLE'S   LAW 

This  proposal  of  Mr.  Randolph  brought  the  question  to  a  focus, 
and  arrayed  the  radicals  and  conservatives  on  their  respective  sides 
of  the  great  issue  which  divided  them,  and  of  which  the  convention 
was  itself  a  product.  The  debates  throw  an  interesting  side-light  on 
the  existing  state  of  political  opinion  regarding  the  suffrage,  and  in- 
cidentally as  to  popular  ratification  and  its  necessity.  Mr.  Randolph, 
in  behalf  of  his  resolution,  after  dwelling  upon  the  circumstances 
under  which  the  proposal  to  call  the  convention  had  been  submitted, 
said :  — 

"Is  it  not  plain  that  the  freeholders  had  no  option  but  to  elect  delegates? 
But  that  does  not  in  the  slightest  degree  consecrate  that  provision  in  the  act,  which 
declares  to  whom  the  Constitution  shall  be  submitted.  Sir,  though  it  is  using 
strong  terms,  it  would  have  been  an  act  of  treachery  to  their  own  principles,  to 
permit  the  Constitution  to  be  submitted  to  any  others  than  freeholders  for  accept- 
ance or  rejection.  Is  it  not  obvious  that  if  the  Commonwealth  consists  of  free- 
holders and  non-freeholders,  —  and  the  non-freeholders  are,  —  as  we  have  been 
told  they  are, —  the  most  numerous  of  the  two, —  that  the  worst  of  constitutions, 

—  and  God  knows  I   have  nothing  to  say  in  favor  of  this  one,  —  might  have  been 
imposed  upon  the  Commonwealth  by  those  who, —  in  the  language  of  a  gentle- 
man of  this  floor, —  are  'out  of  the  Constitution'  against  the  voice  of  every  free- 
holder in  the  country  ?     Sir,  what  sort  of  a  tribunal  do  you  elect,  when  you  admit 
those  who  have  no  lot  or  part  in  our  acts,  —  to  pass  judgment  upon  them  ?     Sir, 
you  might  as  well  refer  the  Constitution  to  the  people  of  Ohio,  —  or  the  people 
of  Kentucky,  —  or  I  will  go  farther,  —  to  the  people  of  Japan.     Yes,  Sir,  —  they 
have  just  as  good  a  right  to  decide  upon  it."1 

On  the  other  hand,  Delegate  Thompson,  speaking  for  the  radicals, 
contended :  — 

"That  according  to  the  theory  and  principles  of  free  government  and  the 
equal  rights  of  man,  the  question  of  ratification  or  rejection  should  be  submitted 
to  the  whole  community,  —  freeholder  and  non-freeholder,  whether  entitled  or 
not  to  the  right  of  suffrage  under  the  constitution  submitted,  or  the  existing  one. 

This,  he  said,  had  been  the  invariable  practice  of  every  State  in  the  Union, 
that  had  submitted  an  original  or  amended  Constitution.  It  was  the  only  way 
in  which  a  government  could  regularly  and  rightfully  be  called  into  existence. 

and  head  of  a  family  shall  live.  And  in  case  of  two  or  more  tenants  in  common,  joint 
tenants  or  parceners,  in  possession,  reversion,  or  remainder,  having  interest  in  lands 
the  value  whereof  shall  be  insufficient  to  entitle  them  all  to  vote,  they  shall  together 
have  as  many  votes  as  the  value  of  the  land  shall  entitle  them  to ;  and  the  legislature 
shall  by  law  provide  the  mode  in  which  their  vote  or  votes  shall  in  such  case  be  given." 

—  Poore,  "Charters  and  Constitutions,"  II,  1917. 

1  Proceedings  and  Debates  of  the  Virginia  Convention  of  1829-1830  (Richmond, 
1830),  884,  885. 


NlVF£TRSlTYPtt>PULAR   RATIFICATION   IN   THE   SOUTH  221 

act  of  a  majority,  all  having  l>een  consulted,  —  and  if  a  majority 
Txcludea  part  from  Suffrage,  they  have  the  unquestionable  right  to  do  so.  From 
their  decision  there  is  no  appeal.  Then,  and  then  only  is  decided  rightfully  the 
question,  whether  it  is  expedient  to  surrender  this  great  natural  right.  Then  is 
there  less  cause  of  complaint  against  its  abridgment.  Then  the  plea  of  expedi- 
ency can  be  urged  with  plausibility  and  effect  to  sustain  the  decree  of  the  majority, 
in  which  resides  the  rightful  sovereignty  in  all  free  governments.  All  the  gentle- 
men who  have  advocated  a  restricted  suffrage  on  the  floor,  have  founded  the  right 
to  exclude  upon  the  ground  of  expediency,  and  not  that  one  man  by  nature  has 
more  right  than  another:  but  the  difference  between  us  is,  that  they  make  the 
minority  the  judges  of  the  expediency,  of  retaining  power  in  their  own  hands.  I 
claim  for  the  majority  the  right  to  decide  this  question.  The  same  principles 
that  would  sanction  the  right  of  less  than  a  majority  to  decide  this  question  of 
expediency,  would  justify  monarchy,  oligarchy,  aristocracy,  despotism.  If  the 
freeholders,  without  consulting  the  non -freeholders,  arrogate  to  themselves  the 
exclusive  right  to  govern  this  land,  whether  they  be  a  majority  or  not,  why  may 
not  a  part  of  them  with  equal  propriety  assume  that  right  in  exclusion  of  the  rest  ? 
Why  may  not  the  large  landed  proprietors  deposing  the  petty  freeholders,  say, 
that  they  alone  are  the  rightful  sovereigns."  l 

Delegate  Johnson  inquired :  — 

"Suppose  the  Constitution  which  they  had  now  made  should  be  rejected 
by  the  people,  had  they  no  government  under  them  ?  Would  they  have  no  Con- 
stitution? He  was  sure  the  gentleman  from  Charlotte  would  not  say  so.  (Mr. 
R.  'That  I  won't.')  How  came  thai  Constitution  to  be  the  supreme  law  of  the 
land  ?  Had  it  ever  been  submitted  to  the  constituent  body  for  their  ratification  ? 
Had  they  ever  voted  on  it  at  the  polls?  How  else  had  the  people  expressed  their 
assent  to  it,  than  by  the  election  of  Delegates  under  it,  and  by  a  tacit  acquiescence. 
The  authority  of  those  who  framed  it  was  a  general  grant  of  power  to  provide 
for  the  exigencies  of  the  times,  —  to  adopt  a  form  of  government  for  the  Common- 
wealth. He  did  not  believe  they  had  usurped  any  authority."2 

Delegate  Nicholas  declared  that :  — 

"Every  reason  which  could  be  urged,  for  referring  the  question  of  calling 
a  convention  to  the  freeholders,  applies  with  equal  force  to  shew  that  the  ratifi- 
cation or  rejection  should  also  be  submitted  to  them.  But,  it  is  contended  that 
the  freeholders  have  assented  to  a  reference  of  this  question  to  others  than  them- 
selves. The  law  submitting  the  question  to  the  freeholders,  only  required  them 
to  say  'Convention'  or  'No  Convention.'  Their  decision  in  favor  of  a  Conven- 
tion, did  not  waive  their  right  to  pronounce  on  the  form  of  government,  which 
might  be  tendered  for  their  acceptance,  nor  amount  to  a  sanction  of  all  the  pro- 
visions which  might  be  incorporated  into  an  act  calling  the  Convention.  Nor 
is  the  argument  valid,  which  attempts  to  shew  that  sending  delegates  to  the  Con- 
vention implied  an  assent  to  all  the  provisions  of  the  law,  where  those  provisions 

1  Id.  886,  887.  2  Id.  889. 


222  THE   PEOPLE'S    LAW 

exceed  the  power  given  the  legislature,  which  was  simply  to  call  a  convention. 
This  has  been  satisfactorily  shown  by  the  gentleman  from  Charlotte  (Mr.  Ran- 
dolph). The  freeholders  of  one  section,  knowing  that  those  in  another  would 
send  deputies,  were  placed  in  a  situation,  where  they  were  compelled  to  do  the 
same,  or  suffer  a  constitution  to  be  got  up  by  one-half  of  the  State  to  the  exclu- 
sion of  the  other.  And  though  the  authority  of  such  a  Constitution  might  be 
well  questioned,  yet  the  conflict  about  it  might  have  convulsed  the  state.  The 
argument  that  the  people  might  have  remonstrated  against  the  terms  of  the  law, 
is  not  sufficient  to  shew  that  the  Legislature  did  not  transcend  their  powers  in 
referring  the  subject  to  voters  other  than  freeholders."  l 

The  vote  on  this  resolution  confirmed  what  the  newly  framed  in- 
strument had  already  indicated,  viz. :  that  at  least  the  conservatives 
were  not  in  control.  The  proposal  of  Mr.  Randolph  was  rejected  by 
a  vote  of  more  than  two  to  one,  and  the  new  constitution  was  sub- 
mitted to  the  voters  at  large,  including  those  upon  whom  the  instru- 
ment itself  conferred  the  right  of  suffrage.  Previous  to  the  election, 
however,  the  General  Assembly  passed  a  statute  designed  to  remove 
doubts  in  the  construction  of  the  enabling  act  and  repealing  certain 
clauses  like  that  requiring  three  months'  publication.2  A  majority 
of  more  than  ten  thousand  in  a  total  vote  but  slightly  in  excess  of  that 
by  which  the  proposal  to  call  a  convention  had  originally  passed,  at- 
tested the  popularity  of  the  new  instrument. 

Thus  originated  the  first  popularly  ratified  state  constitution  of 
the  South.  Neighboring  states  had  submitted  proposals  for  conven- 
tions, and  had  adopted  provisions  requiring  future  constitutional 
changes  to  be  submitted,  but  this  was  the  first  instance  of  a  practical 
application  of  the  plan  south  of  Mason  and  Dixon's  line.  The  effect 
upon  other  Southern  states  was  profound.  Commonwealths  where 
the  idea  of  popular  ratification  had  never  gained  a  foothold,  or  had 
long  lain  dormant,  were  stimulated  to  action  by  this  example. 

But  while  the  convention  of  1829-1830  succeeded  in  establishing 
the  plan  of  submitting  constitutions  to  the  voters,  it  failed  to  effect 
the  radical  reforms  in  suffrage  and  representation  for  which  the 
Western  section  stood.  The  agitation  for  these  was  therefore  soon 
renewed,  but  it  was  not  until  1850  that  the  convention  met  which 
finally  gave  them  force.3 

1  Proceedings  and  Debates  of  the  Virginia  Convention  of  1829-1830  (Richmond, 

1830),  891. 

2  Acts  of  the  General  Assembly  of  Virginia  (Richmond,  1830),  Chap.  IX. 

8  See  an  account  of  its  labors  in  Chandler's  "Representation  in  Virginia,"  Johns 


POPULAR   RATIFICATION    IN   THE    SOUTH  223 

Its  work  was  submitted  to  the  people  and  approved  by  an  over- 
whelming majority.1  Its  disposition  of  the  vexed  question  of  repre- 
sentation was  unique,  and  constituted  a  long  step  toward  popular 
participation,  being  in  effect  a  form  of  the  initiative  and  referendum. 
It  provided  that  in  case  the  general  assembly  should  fail  to  reappor- 
tion  the  state  in  1865,  and  every  ten  years  thereafter  the  governor 
should  "  by  proclamation,  require  the  voters  .  .  .  to  declare  "  whether 
the  new  representation  should  be  based  on  the  suffrage  or  on  taxes 
paid  or  both.2  Provision  was  made  for  ascertaining  the  result,  and 
communicating  it  to  the  assembly  which  was  likewise  enjoined  to 
take  action  in  accordance  therewith.3 

The  work  of  the  Richmond  convention  of  1861,  which  passed  the 
ordinance  of  secession,  was  referred  to  the  voters.4  An  instrument 
framed  at  Alexandria  in  1864  was  not  submitted,  but  it  was  generally 
regarded  as  inoperative.5  The  reconstruction  constitution  of  1869 
was  submitted  pursuant  to  an  act  of  Congress,6  but  through  her  latest 
instrument  just  proclaimed,  Virginia  has  returned  to  the  eighteenth 
century  system  which  required  so  much  effort  to  overthrow. 

In  West  Virginia,  meanwhile,  true  to  the  traditions  and  aspira- 
tions of  her  early  settlers,  the  first  constitution,  framed  at  the  out- 
break of  the  war,  was  ratified  by  the  people  as  was  also  the  instru- 
ment which  displaced  it  a  decade  later.7 

G.    Georgia 

The  first  Georgia  constitution  was  proclaimed  in  1777,  without 
an  apparent  suggestion  of  reference  to  the  people.8  Less  than  a 

Hopkins  University  Studies,  XIV,  314  et  seq.     It  established  universal  white  male  suf- 
frage, but  its  provisions  as  to  representation  were  never  put  in  force. 

"67,562  votes  against  over  9938  votes,  several  counties  not  having  been  heard 
from."  —  Poore,  "Charters  and  Constitutions,"  II,  1919,  note. 

2  Art.  IV,  sec.  5.  *  Art.  IV,  sec.  6. 

4  Jameson,  "Constitutional  Conventions,"  644;  Poore,  "Charters  and  Constitu- 
tions," II,  1937.  The  vote  in  Old  Virginia  was  largely  in  favor;  in  what  is  now  West 
Virginia  contra.  See  Tenney,  "Military  and  Naval  History  of  the  Rebellion  in  the 
United  States,"  36  et  seq. 

6  Chandler,  "Representation  in  Virginia,"  Johns  Hopkins  University  Studies,  XIV, 
327-  '  Id.  333- 

7  Jameson,  "Constitutional  Conventions,"  655;    Poore,  " Charters  and  Constitu- 
tions," II,  1977,  1993.      Both  of  these  instruments  expressly  provide  for  the  popular 
ratification  of  amendments  and  proposals  for  conventions. 

8  Stevens,  "History  of  Georgia"  (Philadelphia,  1859),  II,  297,  298. 


224  THE   PEOPLE'S   LAW 

dozen  years  sufficed  to  demonstrate  the  need  of  revision,  but  even  this 
was  undertaken  in  a  mode  less  democratic  than  that  employed  in 
most  of  the  states.  The  legislature  resolved  in  1788  to  appoint  a 
commission  of  three  from  each  county 

"to  take  under  their  consideration  the  alterations  and  amendments  that  are  neces- 
sary to  be  made  in  the  Constitution  of  this  State  and  to  arrange,  digest  and  alter 
the  same."1 

Their  work  was  to  be  submitted  to  a  second  body,  to  be  chosen  this 
time  by  the  people  "  vested  with  full  power,  and  for  the  sole  purpose 
of  adopting  and  ratifying  or  rejecting"  the  same.2  The  first  body 
of  commissioners,  however,  seems  to  have  been  more  inclined  to 
democratic  methods  than  the  legislature  which  created  it,  for  after 
meeting  and  agreeing  upon  a  draft,  which  they  signed,  they  ordered 
it  printed  and  — 

"sent  by  the  Executive  to  the  different  counties  and  distributed  among  the  jus- 
tices and  field  officers  of  the  militia,  to  be  communicated  to  the  people  for  their 
consideration."  3 

This  was  apparently  an  imitation  of  the  South  Carolina  plan  of 
a  decade  before.4  The  second  body,  instead  of  accepting  or  rejecting 
the  draft  as  it  was  apparently  designed  to  do,  proposed  certain  changes, 
and  a  third  set  of  commissioners  was  called  to  pass  on  these.5  This 
body  finally  agreed  upon  an  instrument  which  was  delivered  to  the 
governor  and  proclaimed  as  the  constitution  of  the  state.6 

In  spite  of  an  excellent  beginning7  we  notice  here  a  marked  con- 
trast with  the  course  pursued  in  certain  other  colonies.  Georgia  was 
settled  chiefly  by  English  and  non-Calvinistic  stock,  and  there  was 
a  lack  of  that  class  of  colonists  whose  hereditary  notions  probably 
led  to  a  demand  for  popular  ratification  in  North  Carolina,  and  to 
its  actual  trial  in  Kentucky  and  Tennessee.  It  was  not  until  after 
the  second  Virginia  convention,  which  attracted  attention  throughout 
the  South,  that  the  practice  of  popular  ratification  came  to  be  recog- 
nized in  Georgia. 

In  1832  the  legislature  passed  an  act  providing  for  a  convention  8 
"to  reduce  the  number  of  the  General  Assembly  .  .  .  and  for  other 
purposes."  There  was  no  precedent  act  for  "taking  the  sense"  of 

1  Stevens,  "  History  of  Georgia  "  (Philadelphia,  1859),  II,  388. 

2  Id.  390.  3  Id.  389.  4  See  ante,  Chap.  IX. 
5  Stevens,  II,  390.                  fl  Id.  390,  391.                        7  Ante,  p.  in. 

8  Georgia  Acts  of  1832  (Milledgeville,  1838),  42. 


POPULAR   RATIFICATION    IN    THE   SOUTH  225 

the  people,  but  they  were  called  upon  to  choose  delegates  who  should 
assemble  at  Milledgeville  in  the  following  year.  After  requiring  that 
the  governor  should  "give  publicity  to  the  alterations  and  amend- 
ments made  in  the  constitution,"  etc.,  the  act  named  a  date  which 
that  official  was  required  to  — 

"fix  for  the  ratification  by  the  people,  of  such  amendments,  alterations  or  new 
articles  as  they  may  make  for  the  objects  of  reduction  and  equalization  of  the 
General  Assembly  only,  and  if  ratified  by  a  majority  of  the  voters  who  vote  on  the 
question  of  *  Ratification '  or  'No  Ratification,' —  then  and  in  that  event  the  altera- 
tions so  by  them  made  and  ratified,  shall  be  binding  on  the  people  of  this  state 
and  not  otherwise. "  1 

The  convention  provided  for  by  this  act  met  and  framed  amend- 
ments to  the  constitution,  which  were  duly  submitted  to  the  voters 
but  rejected  by  them,2  but  five  years  later  in  much  the  same  terms 
as  the  act  of  1832  3  the  legislature  provided  for  another  convention. 
This  body  assembled  in  1839  and  framed  an  entirely  new  constitu- 
tion, which  was  referred  to  and  ratified  by  the  people.4  Once  only 
since  then  has  the  principle  of  popular  ratification  been  ignored.5 
Not  only  the  secession  constitution,  but  the  three  subsequent  ones, 
including  the  instrument  still  in  force,  derived  their  authority  from 
a  vote  of  the  people.6 

H.    North  Carolina 

We  have  seen  how  the  first  demand  for  the  submission  of  a  south- 
ern state  constitution  was  made  in  North  Carolina.  It  was  almost  two 
generations  before  this  desire  of  a  portion  of  its  early  inhabitants  was 
realized,  and  then  the  realization  was  probably  hastened  by  the  then 
recent  experience  and  example  of  Virginia. 

In  1834  the  legislature  of  North  Carolina  passed  an  act  submit- 
ting to  the  people  the  question  whether  a  convention  should  be  called 

1  Georgia  Acts  of  1832,  sec.  6,  p.  43. 

2  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  647. 

3  Georgia  Acts  of  1838  (Milledgeville,  1838),  73. 

4  Jameson,  "Constitutional  Conventions,"  647. 

5  In  the  Milledgeville  convention  of  1861,  called  apparently  without  consulting 
the  people,  a  resolution  was  offered  providing  for  a  popular  vote  on  the  question  of  se- 
cession, but  was  rejected  by  a  large  majority.  —  Tenney,  "  Military  and  Naval  History 
of  the  Rebellion  in  the  United  States." 

6  Jameson,  "  Constitutional  Conventions,"  647. 

Q 


226  THE   PEOPLE'S   LAW 

for  amending  the  original  constitution  still  in  force.1  Besides  pre- 
scribing certain  propositions  to  be  laid  before  the  convention,  the  act 
further  contained  two  significant  provisions.  It  required  - 

"That  the  said  Convention,  after  having  adopted  amendments  to  the  con- 
stitution, in  any  or  all  of  said  particulars,  shall  prescribe  some  mode  for  the  rati- 
fication of  the  same  by  the  people  or  their  representatives.  "2 

It  further  prescribed  — 

"That  the  convention  shall  provide  in  what  manner  amendments  shall  in 
the  future  be  made  to  the  constitution  of  the  State."  3 

The  vote  was  favorable  to  the  calling  of  a  convention  and  that 
body  met  at  Raleigh  in  the  same  year  and  framed  certain  amend- 
ments which  were  adopted.4  The  secession  ordinance  of  this  state, 
unlike  those  of  Georgia  and  Tennessee,  was  not  submitted  to  the 
voters.5  All  subsequent  instruments,  however,  have  been  so  referred 
in  North  Carolina,  including  the  constitution  of  1875,  which  is  still 
the  fundamental  law  of  the  state.6  In  1900  the  suffrage  clause, 
which,  in  other  states,  had  been  incorporated  only  by  proclaiming 
the  constitution,  was  submitted  to  the  voters  and  ratified. 


/.   Florida 

Provision  for  popular  ratification  in  Florida  antedates  the  admis- 
sion of  the  state.  As  early  as  1838  a  convention  met  at  St.  Josephs, 
which  has  been  declared  "by  all  odds  the  ablest  body  of  men  ever 
assembled  in  Florida."  7  It  framed  an  instrument  which  contained 
the  following :  - 

"This  constitution  shall  be  submitted  to  the  people  for  ratification  at  the 
election  for  delegate  on  the  first  Monday  of  May  next.  Each  qualified  voter 

1  North  Carolina  Laws,  1834-1835  (Raleigh,  1835),  Chap.  I.  The  act  was  passed 
November  17,  1834.  2  Id.  sec.  15,  p.  6.  3  Id.  sec.  16. 

4  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  647. 

5  On  January  24,  1861,  a  bill  was  passed  by  the  legislature  submitting  the  question 
of  calling  a  convention  and  providing  at  the  same  time  for  an  election  of  delegates. 
The  result  was  a  majority  against  the  convention.     Of  the  delegates,  82  were  union 
and  38  secession.    On  April  17,  the  legislature,  in  special  session,  called  a  convention 
without  submitting  the  question.     On  May  21  that  body  "enacted"  a  secession  ordi- 
nance.    Tenney,  "Military  and  Naval  History  of  the  Rebellion,"  42,  44. 

8  Jameson,  "Constitutional  Conventions,"  647. 
7  Fairbanks,  "  History  of  Florida,"  201,  202. 


POPULAR   RATIFICATION   IN   THE   SOUTH  227 

shall  express  his  assent  or  dissent  to  the  constitution  by  directing  the  managers 
of  said  election  to  write  opposite  to  his  name  on  the  poll  book  either  the  word 
Constitution  or  No  Constitution."  1 

If  Judge  Jameson  2  is  correct,  however,  this  provision  was  never 
actually  carried  out.  An  Indian  war  was  in  progress,  and  when  the 
convention  met,  "it  was  supposed, "  says  a  recent  historian  of  the 
state,  "that  the  war  was  about  to  be  closed,  but  the  continuance  of 
hostilities  prevented  any  effort  being  then  made  for  admission  to  the 
Union,  and  at  the  close  of  the  war  in  1842  some  opposition  was  mani- 
fested to  assuming  the  expense  of  the  maintenance  of  a  State  govern- 
ment." 3  But  at  any  rate  we  have  here  a  constitutional  recognition 
of  the  practice  nearly  seven  years  in  advance  of  statehood,  and  when 
Florida  actually  entered  the  Union  it  did  so  under  the  same  consti- 
tution,4 which,  indeed,  remained  in  force  until  the  reconstruction 
period.  The  secession  ordinance  was  not  submitted,  nor  was  the  first 
reconstruction  instrument  framed  in  1865. 5  But  the  latter  was  dis- 
placed in  less  than  three  years  by  another,  which  the  people  ratified,8 
and  the  present  constitution  was  adopted  in  the  same  manner  in 
i886.7 

J.   Maryland 

This,  we  have  seen,8  was  one  of  the  states  in  which  a  constitu- 
tion was  proclaimed  at  the  beginning  of  the  Revolution.  There  were, 
however,  some  incidents  in  its  early  history  which  might  have  justified 
the  belief  that  popular  ratification  would  soon  be  in  vogue  in  that 
state. 

When,  in  April,  1788,  the  delegates  chosen  to  consider  the  adop- 
tion of  the  Federal  Constitution  met  at  Annapolis,  there  was  a  strong 
majority  of  Federalists,  and  within  a  week  the  instrument  was  ratified 
by  a  vote  of  63  to  u.9  But,  as  in  Massachusetts,  New  York,  New 

1  Florida  Constitution,  1838,  Art.  XVII,  sec.  5;  Poore,  "Charters  and  Constitu- 
tions," I,  330.     It  provided,  however,  for  amendment  without  popular  ratification. 
Id.  328,  Art.  XIV. 

2  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  653. 

3  Fairbanks,  "History  of  Florida,"  202. 

4  Poore,  I,  331.  5  Id.  332.  e  Id.  347. 

7  Jameson,    "  Constitutional    Conventions,"    653.     Cf .  Fairbanks,    "  History   of 
Florida,"  230.  8  Ante,  137. 

8  See  Steiner,   "Maryland's  Adoption  of  the   Federal  Constitution,"  American 
Historical  Review,  V,  211. 


228  THE   PEOPLE'S   LAW 

Hampshire,  Rhode  Island,  and  other  states,  there  was  a  considerable 
element  which  regarded  the  Federal  Constitution  as  defective  and 
objectionable  in  certain  particulars,  though  some  of  these  believed 
that  practical  considerations  required  its  adoption.  Among  those 
who  insisted  that  the  instrument  should  be  amended  was  William 
Paca,  one  of  the  leaders  of  the  Anti-Federalists  in  this  convention. 
Before  the  vote  to  ratify  was  taken  he  had  prepared  and  attempted 
to  offer  a  list  of  proposed  amendments,1  mostly  of  the  character  of  a 
Bill  of  Rights,  which  the  original  constitution  lacked.  Immediately 
after  the  ratifying  vote  had  been  taken  Paca  renewed  his  proposal 
and,  after  some  debate,  it  was  — 

"  Resolved,  That  a  committee  be  appointed  to  take  into  consideration  and 
report  to  this  house  on  Monday  morning  next,  a  draught  of  such  amendments 
and  alterations,  as  may  be  thought  necessary  in  the  proposed  Constitution  for 
the  United  States,  to  be  recommended  to  the  consideration  of  the  people  of  this 
State,  if  approved  of  by  this  Convention."  2 

The  committee  was  appointed  and  the  amendments  considered, 
but  none  of  them  was  ever  submitted  as  a  majority  of  the  delegates 
appear  to  have  concluded,  on  second  thought,  that  this  course  would 
weaken  the  effect  of  ratification. 

The  plan  here  indicated  may  have  been  suggested  by  the  course 
followed  in  South  Carolina,  with  reference  to  the  second  constitution 
of  that  state.3  There  was  not,  it  is  true,  any  specific  indication  as  to 
how  the  people  were  to  express  the  results  of  such  a  "  consideration," 
but  it  was  something  to  recognize  that  the  consideration  was  proper 
and  necessary. 

Another  early  indication  of  democratic  tendencies  in  Maryland  is 
found  in  the  extension  of  the  franchise.  In  1810,  a  full  generation 
before  the  movement  for  universal  suffrage  had  been  consummated 
elsewhere,  Maryland  adopted  an  amendment,  conferring  the  franchise 
upon  all  free,  white,  male  citizens  of  one  year's  residence.4  This 
result,  it  will  be  remembered,  was  not  accomplished  in  Virginia  until 
forty  years  later,  and  then  only  after  a  prolonged  and  bitter  contest. 

1  See  Steiner,  "  Maryland's  Adoption  of  the  Federal  Constitution,"  American  His- 
torical Review,  V,  223,  224,  where  the  text  of  these  is  printed. 

2  Id.  212,  213.  *  Ante,  Chap.  IX. 

4  Poore,  "Charters  and  Constitutions,"  I,  832.  "The  state  of  Maryland,  which 
had  been  founded  by  men  of  rank,  was  first  to  proclaim  universal  suffrage  and  to  intro- 
duce the  most  democratic  forms  into  the  whole  of  its  government."  —  De  Tocqueville, 
''Democracy  in  America"  (6th  Ed.,  Boston,  1876),  I,  71. 


POPULAR   RATIFICATION   IN   THE   SOUTH  229 

But  notwithstanding  these  early  indications,  and  although  Mary- 
land is  situated  on  the  border  of  the  sections  between  two  states 
which  had  adopted  the  system  of  popular  ratification  comparatively 
early,  it  was  nevertheless  the  last  state  in  the  South  to  submit  its 
constitution  to  a  popular  vote  prior  to  the  Civil  War.  Among  the 
causes  for  this  was  the  agitation  of  the  slavery  question,  which  made 
the  slaveholding  class  timid  in  regard  to  political  changes  of  any 
sort.  But  a  more  effective  obstacle  was  found  in  the  existing  consti- 
tution. This  instrument,  framed  in  1776,  provided  for  its  own  amend- 
ment through  an  act  of  two  successive  legislatures,1  and  also  — 

"that  this  Declaration  of  Rights,  or  the  Form  of  Government  to  be  established  by 
this  Convention,  or  any  part  or  either  of  them  ought  not  to  be  altered,  changed 
or  abolished  by  the  Legislature  of  this  State,  but  in  such  manner  as  this  Conven- 
tion shall  prescribe  and  direct. "  2 

This,  it  will  be  seen,  presented  a  more  serious  question  than  had 
arisen  in  Virginia,  where  the  original  constitution  had  merely  failed 
to  provide  any  method  of  amendment  or  change.3  Standing  on  this 
declaration,  the  conservative  element,  including  generally  the  agricul- 
tural and  slaveholding  interests,  resisted  all  attempts  to  call  a  new 
convention,  and  denied  the  legality  of  such  a  course.4  "The  con- 
ventional reformers,"  on  the  other  hand,  who  were  generally  sup- 
ported by  the  commercial  classes,  relied  on  the  inherent  power  of 
the  people  to  change  their  constitution.  "We  hold,"  they  declared 
in  a  statement  published  5  in  the  later  years  of  the  struggle :  — 

"that  the  59th  article  of  the  constitution  is  not,  and  was  not  intended  to  be  other 
than  a  restriction  upon  the  legislature ;  and  that  the  people  cannot  be  curtailed 
of  their  sovereignty  by  constitutional  provisions  nor  by  legislative  enactments." 

Influenced,  no  doubt,  by  the  success  of  the  constitutional  reform- 
ers in  the  neighboring  states  of  Virginia  in  1829  and  Pennsylvania 
in  1835,  and  with  much  the  same  purpose  in  view,  a  movement  was 
inaugurated  in  Maryland  in  the  last-named  year  which  resulted  in 
the  assembling  of  a  delegate  convention  at  Baltimore  in  June,  1836. 
Besides  urging  the  electors  to  vote  for  no  legislative  candidates  who 
would  not  favor  a  reference  to  the  people  of  the  question  of  calling 

1  Art.  LIX.  2  Declaration  of  Rights,  sec.  42.  3  Ante,  218. 

4  See  Harry,  "The  Maryland  Constitution  of  1851,"  Johns  Hopkins  University 
Studies,  XX,  387  et  seq.  This  position  of  the  opponents  of  conventional  reform  seems 
to  be  indorsed  by  Jameson  in  his  "Constitutional  Conventions"  (4th  Ed.,  Chicago, 
1887),  sec.  225.  5  Baltimore  Sun,  September  8,  1849. 


230  THE   PEOPLE'S   LAW 

a  constitutional  convention,  this  body  requested  its  president,  in  case 
the  ensuing  legislature  should  fail  to  submit  the  question 

"forthwith  to  convene  this  convention  for  the  adoption  of  such  ulterior  [sic] 
measures  as  may  then  be  deemed  expedient,  just  and  proper,  as  may  be  best 
calculated,  without  the  aid  of  the  Legislature  to  ensure  the  accomplishment  of 
the  desired  results."  1 

This  movement  did  not  then  bring  about  the  desired  referendum, 
but  it  did,  in  connection  with  the  course  pursued  by  the  opposition, 
result  in  some  notable  changes  in  the  constitution  by  way  of  legisla- 
tive amendment.  For  sixty  years  the  Maryland  senate  had  been 
chosen  by  a  college  of  electors,  consisting  of  two  from  each  county, 
elected  by  the  people.2  This  had  also  furnished  the  model  to  the 
Federal  constitutional  convention  for  its  plan  of  electing  the  presi- 
dent.3 But  as  early  as  1807,  an  attempt  had  been  made  to  substi- 
tute a  direct  election  of  senators  by  the  people,4  and  in  order  to  pre- 
vent a  convention  referendum,  the  opposition  electors  now  refused  to 
meet  with  the  others  and  choose  a  Senate.5  The  result  was  the 
passage  of  an  amendment,  which  was  ratified  by  the  succeeding 
legislature,  abolishing  the  electoral  college,  providing  for  a  popularly 
chosen  Senate,6  and  equalizing  the  legislative  representation  by  in- 
creasing that  of  the  more  populous  counties.7  These  and  other 
changes  tended  to  allay  for  a  time  the  agitation  for  a  convention,  but 
it  was  soon  revived  by  the  increasing  prominence  of  the  slavery  ques- 
tion, and  the  burdensome  conditions  of  the  state's  finances  resulting 
from  heavy  appropriations  for  internal  improvements.  In  1845  an- 
other convention  of  constitutional  reformers  met  at  Baltimore  and 
besides  passing  resolutions,  not  unlike  those  of  1836,  perfected  a  per- 

1  Scharf,  "History  of  Maryland"  (Baltimore,  1879),  III,  189. 

2  Maryland  Constitution  of  1776,  Art.  XIV. 

3  "  To  Maryland  undoubtedly  belongs  the  honor  of  furnishing  to  the  Fathers  the 
basis  of  our  Electoral  system  and  its  essential  features  are  found  in  her  constitution 
of  1776,  the  virtues  of  its  methods  having  been  openly  canvassed  in  the  Federal  con- 
vention July  3,    1787."  —  McKnight,   "The    Electoral    System"   (1878),   221.      Cf. 
the  remarks  of  Mr.  Bowdoin  in  the  Massachusetts  Convention  of  1 788,  called  to  ratify 
the  Federal  Constitution.     See  Elliott's  "Debates,"  II,  127,  128. 

4  Scharf,  "History  of  Maryland"  (Baltimore,  1879),  III,  188;   McSherry,  "His- 
tory of  Maryland"  (Baltimore,  1849),  348. 

5  McSherry,  349^5^.;  Steiner,  "The  Electoral  College,"  Report  of  American 
Historical  Association  (1895),  142. 

6  Poore,  "Charters  and  Constitutions"  (Washington,  1877),  II,  832  et  seq. 
•>  Id.  833,  834. 


POPULAR   RATIFICATION   IN   THE    SOUTH  231 

manent  organization  of  the  movement.1  The  referendum  demand 
was  pressed  upon  the  legislature  at  the  ensuing  session,  but  the 
majority  report  of  the  committee  to  which  the  bill  for  that  purpose 
had  been  referred,  reiterated  the  claim  of  unconstitutionality  for  such 
a  measure,  and  in  the  house  the  vote  was  a  tie.2 

But  although  it  rejected  the  leading  demand  of  the  reformers, 
this  legislature  materially,  and  doubtless  too,  unintentionally,  pro- 
moted their  movement  by  referring  to  the  people,  in  form  at  least,  a 
proposed  amendment  providing  for  biennial  legislative  sessions.3  The 
proposal  was  approved  by  the  voters,4  and  in  this  instance  we  have 
the  first  appearance  of  the  practice  of  popular  ratification  in  Mary- 
land. Though  originally  proposed  nearly  sixty  years  before,  and 
long  and  consistently  demanded  by  a  considerable  element  of  the 
people,  the  application  of  this  democratic  principle  in  constitution- 
making  was  deferred  in  Maryland  until  almost  the  middle  of  the 
nineteenth  century. 

In  the  campaign  of  1847,  the  advocates  of  a  convention  renewed 
their  efforts  with  the  result  that  the  governor  chosen  that  year  was 
favorable  to  the  plan.  The  legislature,  however,  which  was  again 
strongly  Whig,  rejected  the  measure,  and  its  supporters  were  rele- 
gated to  another  appeal  to  the  people.  By  this  time  the  convention 
proposal  had  become  the  burning  question  in  Maryland  politics. 
Coupled  with  it  were  demands  for  a  more  equal  representation  in 
the  Senate,  changes  in  the  tenure,  and  selection  of  the  judiciary  and 
limitations  on  public  expenditures.  Meetings  and  conventions  to 
promote  the  movement  were  held  in  various  parts  of  Maryland,  and 

1  Niles'  Register,  LXVIII  (XVIII,  5th  sen),  405. 

2  Maryland  House  Journal,  1845,  Dec.  Sess. 

3  The  amendment  was  really  adopted  in  the  same  manner  as  previous  ones  by 
the  legislature ;  but  the  act  as  originally  passed  contained  a  clause  requiring  the  judges 
of  election  to  "inquire  of  each  voter  as  he  casts  his  ballot  whether  he  is  for  or  against 
the  provisions  of  this  bill,"  and  to  make  a  return  of  the  votes  thus  cast.     Maryland 
Laws,  1845-1846,  Chap.  269,  sec.  7.     There  was  nothing  in  the  act,  however,  making 
the  adoption  of  the  amendment  dependent  on  the  result  of  this  vote,  though  the  act  did 
recite  that  "  it  is  to  be  desired  that  the  next  legislature,  may  know  whether  so  important 
an  alteration  in  the  constitution  and  form  of  government  of  this  state  ...  is  in  accord- 
ance with  the  will  of  the  people."     Id.  sec.  6. 

4  Poore,  I,  837.     "The  referendum  was  held  on  the  general  election  day  in  1846. 
Each  voter  was  asked  by  the  judges  of  the  election  whether  he  was  in  favor  of  biennial 
or  annual  sessions.     Biennial  sessions  were  declared  for  by  a  majority  of  some  five 
thousand  voters." — Harry,  "The  Maryland  Constitution  of  1851,"  Johns  Hopkins 
University  Studies,  XX,  428. 


232  THE   PEOPLE'S   LAW 

another  state  convention  met  at  Baltimore  in  July,  1849,  which  de- 
voted two  days  to  formulating  plans  of  campaign,  and  adopted  a 
resolution  declaring  — 

"that  all  minor  questions,  whether  of  Federal  or  State  policy  should  be  omitted, 
to  attain  for  the  people  the  great  blessings  of  reform  of  their  constitution,  which 
they  alone  are  competent  to  make,  most  beneficially  to  themselves,  by  the  means 
of  a  convention,  which  shall  be  composed  of  delegates  directly  elected  by,  and 
immediately  responsible  to,  the  people  of  this  State. "  1 

In  the  campaign  that  followed,  the  Democrats  generally  advo- 
cated a  convention;  while  many  Whigs  favored  it,  the  opposition 
came  from  that  party  especially  on  the  Eastern  shore  and  in  the  south- 
ern counties.  When  the  election  of  1849  was  held,  it  was  found  that 
the  Whigs  had  a  majority  in  both  houses  of  the  legislature,  but  owing 
to  the  divided  sentiment  of  that  party,  the  fate  of  the  convention 
project  was  still  in  doubt.  Upon  the  assembling  of  the  legislature,  a 
special  committee  was  chosen  by  the  House  to  consider  the  submis- 
sion of  a  convention  proposal,  and  to  prepare  a  measure  accordingly. 
In  January,  1850,  two  reports  were  presented,  one  favoring  a  con- 
vention and  accompanied  by  a  bill  for  that  purpose ;  the  other  adher- 
ing to  the  position  that  such  a  plan  was  illegal,  and  recommending 
first  a  repeal  of  the  controverted  clauses  in  the  old  constitution.  The 
conservatives  no  longer  opposed  a  convention  in  toto;  the  most  they 
could  now  hope  for  was  delay,  and  they  contented  themselves  with 
urging  a  different  method  from  that  of  their  adversaries.  The  strug- 
gle between  the  advocates  of  the  respective  plans  was  intense,  and 
seems  to  have  been  terminated  in  favor  of  submission  only  when  it 
was  plainly  seen  that  a  majority  of  the  electors  were  determined  to 
secure  a  convention  whether  authorized  by  the  legislature  or  not.2 
Both  houses  of  the  legislature,  by  a  close  vote,  finally  passed  the  com- 
mittee bill,  submitting  to  the  people  the  question  of  calling  a  con- 
vention and  providing  further :  — 

"That  the  constitution  reported  and  adopted  by  the  convention  assembled 
as  aforesaid  shall,  on  the  first  Wednesday  of  June,  eighteen  hundred  and  fifty- 
one,  be  submitted  to  the  legal  and  qualified  voters  of  this  state,  for  their  adoption 
or  rejection."  s 

1  Baltimore  American,  July  27,  1849,  quoted  by  Harry,  "The  Maryland  Constitu- 
tion of  1851,"  Johns  Hopkins  University  Studies,  XX,  405. 

2  See  an  editorial  in  the  Baltimore  Sun,  May  7,  1850. 

3  Maryland  Laws,  1850,  Chap.  405. 


POPULAR   RATIFICATION   IN   THE    SOUTH  233 

The  campaign  was  now  again  transferred  to  the  people.  The 
advocates  of  the  amendment  made  an  organized  effort  in  its  behalf, 
and  took  no  chances  on  popular  indifference.1  The  result,  however, 
showed  that  this  was  unnecessary.  At  the  election  in  May,  1850, 
out  of  28,358  votes  cast,  23,423,  or  nearly  six-sevenths,  were  in  favor 
of  a  convention.2  Thus  did  the  Maryland  electorate  express  itself 
with  no  uncertain  voice,  when  the  long  deferred  opportunity  was 
given.  Delegates  were  elected  on  September  4,  1850,  and  two  months 
later  the  convention  met  at  Annapolis.  With  the  details  of  its  pro- 
ceedings we  are  not  here  so  directly  concerned. 

"The  great  battle,  in  fact,  was  fought  and  won  when  the  legislature  after 
a  steady  resistance  of  twenty  years,  finally  promulgated,  and  Maryland  by  an 
almost  unanimous  vote  ratified,  the  doctrine  that  the  people  are  not  enchained 
by  the  fifty-ninth  article  of  the  constitution.' ' 3 

Speaking  generally,  this  convention  may  be  said  to  have  per- 
formed the  work  of  democratizing  the  constitution,  which  in  other 
states  had  been  accomplished  nearly  a  generation  before.  The  con- 
stitution framed  by  it  broadened  the  religious  qualification  for  hold- 
ing office,4  practically  abolished  the  extensive  appointing  powers  of 
the  governor,  and  made  most  officers  elective,5  including  all  judges,6 
reduced  the  terms  and  salaries  of  appellate  court  judges,7  based  rep- 
resentation in  the  House  of  Delegates  on  population,8  reduced  the 
terms  of  senators  from  six  to  four  years,9  abolished  imprisonment  for 
debt,10  provided  an  exemption  from  execution  of  property  to  the 
amount  of  five  hundred  dollars,11  and  limited  the  rate  of  interest  to 
six  per  cent.12 

In  reference  to  future  constitutional  changes,  however,  the  con- 
vention witnessed  the  renewal,  on  a  small  scale,  of  the  long  struggle 
between  advocates  and  opponents  of  popular  ratification.  The  report 
of  the  chairman  of  the  committee  on  future  amendments  and  revision, 

1  Harry,  "The  Maryland  Constitution  of  1851,"  Johns  Hopkins  University  Studies 
XX,  409,  410.  2  Id.  409,  410,  463. 

3  Governor  Lowe  in  his  inaugural  address,  1851;  Debates  of  the  Maryland  Con- 
vention of  1851,  II,  96. 

4  Constitution  of  1851,  Declaration  of  Rights,  sec.  34.     This  clause  required  only 
a  declaration  of  belief  in  a  future  state  of  rewards  and  punishments,  instead  of  in  the 
Christian  religion,  as  did  the  Declaration  of  Rights  of  1776,  Art.  XXXV. 

5  Art.  II,  sec.  u.  «  Art.  Ill,  sec.  3.  "  Art.  Ill,  sec.  39. 

6  Art.  IV.  •  Art.  Ill,  sec.  6.  u  Art.  Ill,  sec.  49. 

7  Art.  IV,  sec.  4.  "  Art.  Ill,  sec.  44. 


234  THE   PEOPLE'S   LAW 

virtually  recommended  the  retention  of  the  old  system  of  amendment 
by  the  legislature,  for  while  it  provided  for  a  convention,  this  was  to 
be  called  by  the  legislature  if  its  action  should  be  ratified  by  a  succeed- 
ing one.1  As  against  this  report,  which  was  not  signed  by  a  majority 
of  the  committee,  another  member,  with  the  concurrence  of  four 
colleagues,  recommended  on  the  following  day  the  plan  of  peri- 
odical resubmission  to  the  people,  every  ten  years,  of  the  proposal  to 
call  a  convention.2  In  the  debates  on  this  question,  it  developed  that 
the  first  report  was  offered  in  the  interest  of  the  slaveholders.  Its 
author  and  advocate  "was  not  willing  to  trust  the  maintenance  of 
slavery  under  a  constitutional  provision  which  would  enable  the 
majority  of  the  voters  to  call  a  convention."3  Always  quick  to  scent 
alarm,  the  defenders  of  the  slave  power  saw  its  doom  in  a  constitu- 
tion which  should  spring  solely  from  the  sovereign  people. 

An  attempt  was  made  to  amend  the  second  report  by  requiring 
the  governor,  without  action  by  the  legislature,  to  submit  the  con- 
vention proposal  every  ten  years.4  But  this  was  too  radical  a  depar- 
ture from  previous  usage,  and  the  second  report  was  adopted,  changed 
only  by  requiring  the  submission  to  take  place  after  each  Federal 
census. 

The  instrument -finally  framed  by  this  convention  went  to  the 
electors  on  June  4,  1851,  after  a  brief  canvass  of  twenty-two  days.  It 
encountered  much  bitter  opposition,5  and  might  have  been  rejected  6 
had  not  that  result  involved  also  the  principle  of  popular  ratification 
of  which  this  instrument  was  at  once  the  embodiment  and  the  out- 
growth. The  attitude  of  the  people  of  Maryland  toward  this  great 
doctrine,  which  the  constitution  of  1851  so  firmly  anchored,  was  well 
expressed  by  Governor  Lowe  in  his  inaugural  message  of  that  year, 
when  he  said  of  it :  — 

"This  is  the  entering  wedge  to  the  future.  This  is  the  key  to  the  treasury 
of  popular  rights.  With  this  weapon  the  people  will  be  resistless  in  all  future 
struggles  for  the  extension  of  their  privileges."  7 

1  Debates  of  the  Maryland  Convention  of  1851,  II,  223.  2  Id.  245. 

3  Harry,    "The   Maryland    Constitution    of    1851,"    Johns   Hopkins    University 
Studies,  XX,  436;   Debates  of  the  Convention,  II,  364.    Cf.  I,  153. 

4  Debates  of  the  Convention,  II,  360. 

5  "  The  failure  to  provide  for  a  uniform  system  of  public  schools,"  caused  much 
dissatisfaction.  —  Harry,  "The  Maryland  Constitution,"  Johns  Hopkins  University 
Studies,  XX,  443. 

8  Id.  449.  7  Debates  of  the  Maryland  Convention  of  1851,  II,  96. 


POPULAR   RATIFICATION   IN   THE   SOUTH  235 

In  such  a  spirit  as  this  the  electorate  of  Maryland  ratified  its  first 
popular  constitution.  The  verdict  was  not  so  pronounced  1  as  in  the 
vote  on  the  convention  proposal,  but,  in  view  of  the  conceded  defi- 
ciencies of  the  instrument,  this  was  a  clear  declaration  of  what  proved 
to  be  true,  —  that  popular  ratification  was  now  a  permanent  part  of 
the  public  law  of  Maryland.  Three  years  later  the  state's  highest 
court  said  of  this  instrument :  — 

It,  unlike  the  acts  of  our  legislature,  "  owes  Us  whole  force  and  authority  to 
Us  ratification  by  the  people."  * 

And  although  the  legislature  failed  to  perform  its  duty  of  resub- 
mission  until  four  years  after  the  ensuing  Federal  census,3  the  result 
then  was  the  calling  of  a  convention  and  the  framing  of  a  new  and 
more  satisfactory  constitution,  which  was  referred  to  and  ratified  by 
the  people  even  in  the  midst  of  a  civil  war,  of  which  their  state  was 
too  frequently  the  scene.4 

This  instrument  not  only  contained  a  requirement  of  its  own 
submission  but  provided  for  amendment  by  a  majority  of  those 
voting  thereon,  and  adopted  the  New  Hampshire  idea  of  periodical 
consultation  of  the  people,  making  the  period  every  twenty  years.5 

Three  years  later  the  voters  acted  again,  and  another  constitu- 
tion was  put  in  force,6  to  remain  for  many  years,  and  no  attempt 
seems  ever  to  have  been  made  to  return  to  the  system  of  constitution- 
making  without  the  direct  participation  of  the  people.  Even  the 
movement  to  restrict  the  suffrage,  in  which  Maryland  attempted  to 
follow  the  lead  of  her  Southern  neighbors,  was  promoted  by  submit- 
ting constitutional  amendments  instead  of  through  what  Dr.  Bor- 
geaud  terms  7  the  coup  d'etat  of  Mississippi. 

Thus  the  system  of  popular  ratification  became  general  through- 
out the  South.  At  the  outbreak  of  the  war  there  was  no  Southern 

"  The  vote  was  29,025  in  favor  and  18,616  against,  giving  a  majority  of  10,409." 
—  Harry,  "The  Maryland  Constitution  of  1851,"  Johns  Hopkins  University  Studies, 
XX,  446,  464. 

2  Manley  v.  State,  7  Md.  135,  136,  147.  *  Maryland  Laws,  1864,  Chap.  V. 

4  See  Myers,  "The  Maryland  Constitution  of  1864,"    Johns  Hopkins  University 
Studies,  XIX,  353  et  seq. 

5  Art.  XI,  Poore,  "  Charters  and  Constitutions,"  I,  884,  885. 

8  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  646. 
7  "Adoption  and  Amendment  of  Constitutions"   (Hazen's  Trans.,  New  York, 
1895),  174,  note. 


236  THE   PEOPLE'S  LAW 

state  which  had  not  in  some  way  recognized  popular  ratification  in 
its  public  law,  though  South  Carolina  had  never  repeated  its  early 
approach  to  the  plan.  Even  ordinances  of  secession  were,  as  we 
have  seen,  submitted  in  the  states  of  Tennessee,  Texas,  and  Virginia. 
Of  the  others  a  distinguished  Northern  judge  declared :  — 

"In  our  day,  conventions,  imputing  sovereignty  to  themselves,  have  ordained 
secession,  dragged  states  into  rebellion  against  the  well-known  wishes  of  their 
quiet  people,  and  erected  in  the  midst  of  the  nation  alien  state  governments  and 
a  Southern  Confederacy."  1 

1  Wood's  Appeal,  75  Pa.  St.  74. 


CHAPTER  XV 

POPULAR  RATIFICATION  IN  THE  MIDDLE  STATES 
A.    Pennsylvania 

POPULAR  ratification  was,  as  has  been  shown,  recognized  in  the 
public  law  of  Pennsylvania  during  the  revolutionary  period.  In- 
deed, before  the  close  of  the  eighteenth  century  the  plan  had  been 
actually  applied  in  a  way,  and  to  the  Keystone  Commonwealth  be- 
longs the  honor  of  having  been  the  pioneer  in  this  movement  among 
the  middle  states. 

In  1789  the  assembly  passed  resolutions  expressing  its  approval 
of  the  plan  of  calling  a  convention,  and  further  providing :  — 

"That  on  the  pleasure  of  the  people  in  the  premises  being  signified  to  them 
at  their  next  sitting,  they  would  provide  by  law  for  the  expenses  of  the  Conven- 
tion, and,  if  requested,  would  appoint  the  time  and  place  for  the  meeting 
thereof."  1 

This  time  the  "pleasure  of  the  people"  seems  to  have  been  learned 
through  the  medium  of  petitions  and  reports  by  members  of  the  as- 
sembly, and  a  convention  was  at  last  called  which  entered  upon  its 
work  in  Philadelphia  in  November,  1789.  This  body,  after  a  session 
of  about  three  months,  framed  a  new  constitution,  and  adjourned  on 
February  26,  1790,  "that  the  people  might  examine  it."  2  Copies  of 
the  new  instrument  to  the  number  of  3500  in  English  and  1500  in 
German  were  printed  and  distributed,3  but  no  formal  steps  appear 
to  have  been  taken  to  ascertain  the  popular  will  by  vote.4 

The  constitution  thus  adopted  remained  in  force  for  almost  a  half 
century,  but  it  contained  no  provision  for  its  own  amendment,  and 
as  time  passed  and  conditions  changed,  this  was  found  to  be  a  serious 
defect.  Influenced,  no  doubt,  also  by  the  example  of  numerous  other 

1  Jameson,  "Constitutional  Conventions,"  sec.  222.  2  Id.  646. 

3  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  170,  note. 

4  Jameson,  "Constitutional  Conventions,"  646. 

237 


238  THE   PEOPLE'S   LAW 

states  which  were  adopting  or  changing  constitutions  about  this 
period,  the  legislature,  in  1835,  submitted  the  question  of  calling  a 
convention  with 

"authority  to  submit  amendments  of  the  State  Constitution  to  a  vote  of  the  people 
for  their  ratification  or  rejection,  and  with  no  other  or  greater  powers  whatsoever. " 

The  language  of  this  act  is  significant.  It  shows  that  by  this 
time  the  theory  that  sovereignty  resides  in  the  convention  had  been 
thoroughly  repudiated  in  Pennsylvania,  and  that  the  legislature  was 
not  content  merely  to  provide  for  empowering  the  convention  to  sub- 
mit amendments,  but  desired  to  forestall  any  attempt  to  proclaim 
them.  As  the  result  of  the  poll  was  favorable  to  a  convention,  an 
act  was  passed  the  following  year  providing  for  its  convocation  and 
prescribing  requirements  for  submitting  the  results  of  its  work  to  the 
electors,2  and  the  convention  accordingly  met  at  Harrisburg  in  i837-3 

As  the  necessity  for  providing  a  satisfactory  method  of  amend- 
ment was  one  of  the  main  causes  which  led  to  the  convention,  it  was 
natural  that  much  of  the  delegates'  attention  should  be  devoted  to 
that  subject.  Maine,  as  we  have  seen,  had  dispensed  with  the 
double  legislative  authorization,  but  it  still  required  a  majority  of 
two-thirds  to  submit.  The  method  finally  evolved  in  Pennsylvania 
differed  from  any  theretofore  adopted  in  authorizing  the  submission 
of  amendments  by  a  majority  vote  only,  though  still  requiring  the 
approval  of  two  successive  legislatures.4  This  plan  was  not  agreed 
to  in  the  convention  without  considerable  debate.5 

There  was  the  usual  division  among  the  delegates  into  radical 
and  conservative  groups,  the  former  urging  the  convention  to  trust 
the  people,  and  the  latter  pointing  out  the  danger  of  hasty  and  ill- 
advised  changes.  One  interesting  feature  of  the  discussion  was  a 
proposal,8  coming  curiously  enough  from  the  conservatives,  making 
a  petition  from  five  per  cent  of  the  voters  a  prerequisite  to  legislative 
action  upon  amendments.  Pennsylvania  had,  as  we  have  seen,  in 
her  first  constitution,  practically  adopted  the  referendum.  This  time 
the  commonwealth  came  near  having  the  initiative.  The  proposal 

1  Pennsylvania  Laws,  1834-1835,  270.  2  Id.  214. 

3  See  its  Journal  (Harrisburg,  1837). 

4  Pennsylvania  Constitution,  1838,  Art.  X;   Poore,  "Charters  and  Constitutions," 
II,  1565,  1566. 

6  Proceedings  and  Debates  of  the  Convention,  XII,  84,  102,  225,  242-262. 
8  Id.  58,  84. 


POPULAR   RATIFICATION   IN   THE   MIDDLE   STATES        239 

was  finally  defeated,  but  the  plan  agreed  upon  was  a  compromise, 
submission  being  authorized  but  once  in  five  years.1  This  may  ac- 
count for  the  narrow  majority 2  which  the  revision 3  received,  though 
the  article  was  retained  in  toto*  in  the  constitution  of  1873,  which 
was  framed  by  a  convention  likewise  meeting  at  Harrisburg,  and 
whose  work  was  approved  by  a  popular  majority  of  more  than  two 
to  one.5  It  was  this  convention  which  attempted  to  enact  an  ordi- 
nance providing  for  the  appointment  of  officers  for  the  election  at 
which  the  instrument  should  be  submitted,  and  this  action  called 
forth  two  vigorous  opinions 6  from  the  Supreme  Court  defining  the 
powers  of  such  a  convention,  denying  it  the  slightest  legislative  ca- 
pacity, and  sweeping  away  the  last  vestige  in  that  state  of  the  dele- 
gate theory  in  constitution-making. 

B.   New  York 

Nowhere  is  the  truth  better  illustrated  that  the  spread  of  the 
method  of  popular  ratification  paralleled  the  movement  for  the 
democratization  of  the  government  than  in  the  history  of  the  second 
constitution  of  New  York.  For  nearly  a  half  century  the  people  of 
that  state  had  lived  under  a  constitution,  framed  in  the  early  years 
of  the  Revolutionary  War,  which  retained  many  of  the  aristocratic 
features  of  the  old  regime.  As  was  well  remarked  by  a  member  7  of 
the  convention  of  1821,  "the  framers  of  the  constitution  of  1777  bor- 
rowed freely  from  that  government  whose  chains  they  had  recently 
broken."  One  of  these  features  was  the  council  of  revision,  con- 
sisting of  the  governor,  chancellor,  and  judges  of  the  Supreme  Court, 
to  which  all  bills  passed  by  the  legislature  were  required  to  be  sub- 
mitted, and  upon  which  was  conferred  the  veto  power,  subject  to 
being  overruled  only  by  a  two-thirds  vote  of  the  legislature.8  An- 
other was  the  suffrage  clause  requiring  a  voter  to  have  been  for  six 

Art.  X;  Poore,  "Charters  and  Constitutions,"  II,  1366. 

The  vote  was  113,971  to  112,759. 

The  amendments,  together  with  the  old  constitution,  were  printed  and  circulated. 

Art.  XVIII.     See  Poore,  "Charters  and  Constitutions,"  II,  1590. 

The  vote  was  293,564  to  109,198. 

Wells  v.  Bain,  75  Pa.  St.  39 ;  Wood's  Appeal,  75  Pa.  St.  59. 

Mr.  Wheeler,  representing  Washington  and  Warren  counties.     See  Proceedings 
and  Debates  of  the  New  York  Constitutional  Convention  of  1821,  117. 

8  New  York  Constitution  of  1777,  Art.  Ill;  Poore,  "Charters  and  Constitutions," 
II,  1332. 


240  THE   PEOPLE'S    LAW 

months  "a  freeholder,  possessing  a  freehold  of  the  value  of  twenty 
pounds  within  the  said  county,  or  have  rented  a  tenement  therein 
of  the  yearly  value  of  forty  shillings,  and  been  rated  and  actually 
paid  taxes  to  this  State."  *  Still  another  was  the  council  of  appoint- 
ment, consisting  of  a  committee  of  senators  chosen  by  the  assembly, 
to  which  was  committed  the  appointment  of  practically  all  of  the 
local  and  county  officers.2  Provisions  like  these  became  more  and 
more  irksome  to  the  New  Yorkers  as  the  growing  spirit  of  democ- 
racy permeated  the  state,  and  as  they  saw  other  states  around  them 
adopting  constitutions  more  in  accordance  with  the  popular  senti- 
ment of  the  day.  By  the  close  of  the  second  decade  of  the  nine- 
teenth century  there  was  a  loud  demand  for  a  change.  The  existing 
constitution  did  not  provide  for  its  own  amendment  in  any  form  and 
a  constitutional  convention  seemed  to  be  the  only  practical  method 
of  reform.  One  of  the  delegates  in  the  convention  of  1821,  describing 
the  situation,  is  thus  reported : 3  — 

"Defects  in  the  constitution,  which  experience  had  shown,  had  induced  the 
people  to  call  for  a  convention, —  they  had  defined  these  defects.  In  the  November 
session  of  the  legislature,  1820,  public  opinion  had  been  called  in  question  as 
it  regarded  their  wish  for  a  convention.  He  recollected  that  soon  after  the  people 
in  almost  every  county  of  the  state  assembled  expressly  for  the  purpose  of  mani- 
festing their  sentiments  on  the  subject,  —  resolutions  were  passed  defining  the 
rotten  parts  of  the  constitution.  You  have  heard  the  call  for  the  extension  of 
the  elective  franchise,  for  the  abolition  of  the  council  of  appointment  and  the 
alteration  of  the  council  of  revision." 

i.    The  Preliminary  Movement 

In  1819,  Governor  Clinton,  in  his  message  to  the  legislature,  called 
attention  to  this  popular  demand,  but  the  remedy  suggested  was  lim- 
ited to  a  convention.  No  submission  to  the  people  was  recommended, 
and  no  need  of  a  popular  ratification  recognized.  T?ie  statesmen  of 
New  York  were  still  apparently  under  the  spell  of  the  older  practice. 

The  following  year,  however,  witnessed  the  assembling  of  the 
second  constitutional  convention  of  Massachusetts,  whose  labors  we 
have  already  reviewed.  Its  deliberations  attracted  attention  gener- 
ally throughout  the  country,4  and  particularly  in  the  adjoining  state 
of  New  York,  whose  constitution  of  the  ensuing  year  bears  frequent 

1  New  York  Constitution  of  1777,  Art.  VII;  Poore,  II,  1334. 

2  Id.  Art.  XXIII,  1336.  3  Mr.  Nelson.     See  Proceedings  and  Debates,  177. 
4  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  149. 


POPULAR   RATIFICATION   IN   THE  MIDDLE    STATES         241 

evidence  of  the  influence  of  the  Massachusetts  instrument.  Among 
others  Governor  Clinton  seems  to  have  watched  the  proceedings  of 
the  Boston  convention,  and  to  have  been  impressed  with  the  plan  of 
popular  ratification,  which  it,  like  its  predecessors  in  Massachusetts, 
had  applied.  For,  when  the  New  York  legislature  convened  again 
in  November,  1820,  the  governor  sent  a  message  containing  this 
significant  recommendation :  — 

"In  1801,  the  legislature  submitted  two  specific  points  to  a  convention  of 
delegates  chosen  by  the  people,  which  met  and  agreed  to  certain  amendments. 
Attempts  have  been  made  at  various  times  to  follow  up  this  precedent,  which 
have  been  unsuccessful,  not  only  on  account  of  a  collision  of  opinion  about  the 
general  policy  of  the  measure,  but  also  respecting  the  objects  to  be  proposed  to 
the  convention.  These  difficulties  may  be  probably  surmounted  either  by  sub- 
mitting the  subject  of  amendments  generally  to  a  convention,  and  thereby  avoid- 
ing controversy  about  the  purposes  for  which  it  is  called,  or  by  submitting  the 
question  to  the  people  in  the  first  instance  to  determine  whether  one  ought  to 
be  convened ;  and,  in  either  case,  to  provide  for  the  ratification  by  the  people  in 
their  primary  assemblies  of  the  proceedings  of  the  convention."  * 

But  the  legislature  was  more  intent  upon  removing  the  objection- 
able features  of  the  old  constitution  than  of  adopting  any  prescribed 
method  of  constitution-making.  It  therefore  passed  a  bill  providing 
for  a  convention  to  meet  in  the  following  June,  but  omitting  all  pro- 
vision for  the  popular  initiative,  and  while  it  required  popular  ratifi- 
cation, this  requirement  was  coupled  with  movement  for  an  extension 
of  the  franchise  by  providing  for  submission  to  "all  the  free  male 
citizens  of  the  state  twenty-one  years  of  age  and  over."  2  This  bill, 
like  all  others,  went  to  the  council  of  revision,  which  was  then  com- 
posed of  Governor  Clinton,  Chancellor  Kent,  Chief  Justice  Spencer, 
and  Justices  Waite,  Woodworth,  Van  Ness,  and  Platt.  The  two  last 
named  did  not  participate  in  the  consideration  of  the  bill,  while  the 
three  first  named  concurred  in  the  following  objections,  prepared  by 
Chancellor  Kent,  the  two  Supreme  Court  justices  dissenting : 3  — 

"i. —  Because  the  bill  recommends  to  the  citizens  of  this  state,  to  choose 
by  ballot,  on  the  second  Tuesday  of  February  next,  delegates  to  meet  in  Conven- 
tion, for  the  purpose  of  making  such  alterations  in  the  constitution  of  this  state, 
as  they  may  deem  proper,  without  having  first  taken  the  sense  of  the  people 

1  Journal  of  the  New  York  Assembly,  44th  Sess.,  n. 

2  Journal  of  the  New  York  Senate,  44th  Sess.,  48-50. 

3  Proceedings  and  Debates  of  the  New  York  Constitutional  Convention  of  1821, 
Appendix,  677  et  seq. 


242  THE   PEOPLE'S   LAW 

whether  such  a  Convention,  for  such  a  general  and  ultimate  revisal  and  altera- 
tion of  the  constitution,  be,  in  their  judgment,  necessary  and  expedient. 

"  2.  —  Because  the  bill  contemplates  an  amended  constitution  to  be  submitted 
to  the  people  to  be  adopted  or  rejected  in  toto,  without  prescribing  any  mode  by 
which  a  discrimination  may  be  made  between  such  provisions  as  shall  be  deemed 
salutary  and  such  as  shall  be  disapproved  by  the  judgment  of  the  people." 

Borgeaud,1  in  commenting  on  this  veto,  suggests  that  it  was  not 
made  in  good  faith;  that  it  was  used  in  behalf  of  privileged  and 
vested  interests,  and  that  thus  "by  an  anomaly  frequent  in  the  his- 
tory of  popular  governments,  it  [the  opposition]  asserted  itself  in  a 
proposal  even  more  democratic  than  the  one  which  it  wished  to 
avoid." 

It  may  be  that  the  majority  of  this  council  of  revision  was  not 
favorable  to  a  movement  which  threatened  its  own  existence,  but  it 
is  hardly  consistent  with  the  great  reputation  of  Chancellor  Kent 
that  he  presented  these  arguments  insincerely,  and  as  a  mere  subter- 
fuge to  prevent  the  calling  of  a  convention.  However,  a  majority 
in  the  assembly  was  not  convinced  by  the  reasoning  of  the  learned 
chancellor,  and  a  committee  was  appointed  to  which  the  objections 
were  referred.  The  report  of  this  committee  recommended  the  pas- 
sage of  the  bill  over  the  veto  and  presented  an  exhaustive  answer 
to  the  council's  objections,  in  which  it  said,  inter  alia,  after  reviewing 
the  convention  practice  in  other  states :  — 

"It  will  be  seen,  that  none  of  the  constitutions  where  there  is  a  prior  appeal  to 
the  people  require  any  subsequent  reference,  with  the  single  exception  of  New 
Hampshire;  nor  is  any  other  instance  to  be  found  where  there  is  a  subsequent 
reference  of  the  amendments,  that  the  prior  appeal  is  required.  It  would  therefore 
seem  to  be  a  constitutional  principle,  to  be  drawn  from  most  of  these  cases,  that 
at  some  stage  of  an  undertaking  to  amend  a  constitution  a  reference  should  be  made 
to  the  people;  but  whether  that  be  prior,  or  subsequent,  to  a  convention,  seems 
not  material,  especially  in  those  cases  where  the  amendments  are  not  made  by 
the  legislature,  but  by  delegates  of  the  people  chosen  for  that  special  purpose; 
and,  indeed,  the  latter  method  (a  question  to  be  decided  by  the  votes  of  the  people, 
upon  the  final  ratification  of  the  amendments)  is,  in  the  opinion  of  your  committee, 
the  best  safeguard  to  life,  liberty  and  property." 3 

But  if  it  was  really  the  purpose  of  the  council  of  revision  to  pre- 
vent the  question  from  being  determined  by  a  submission  to  an 
electorate  enlarged  on  the  basis  of  universal  manhood  suffrage,  it  was 

1  "Adoption  and  Amendment  of  Constitutions,"  154. 
1  Journal  of  New  York  Assembly,  44th  Sess.,  83. 


POPULAR   RATIFICATION   IN   THE   MIDDLE   STATES         243 

successful,  for  the  supporters  of  the  bill  in  the  legislature  were  un- 
able to  muster  the  necessary  two-thirds  to  secure  its  passage  over  the 
veto.  A  new  measure  was  accordingly  prepared  which  was,  in 
effect,  a  compromise  or  at  least  a  concession  to  the  opponents  of  the 
first.  The  new  bill  provided  for  submitting  the  question  of  calling 
the  convention,  and  also  that  in  case  the  plebiscite  should  result  in 
favor  of  such  a  course 

"  it  shall  and  may  be  lawful,  and  it  is  hereby  recommended  to  the  citizens  of  this 
state,  on  the  third  Tuesday  of  June  next,  to  elect  by  ballot,  delegates  to  meet  in 
convention,  for  the  purpose  of  considering  the  constitution  of  this  state,  and  mak- 
ing such  alterations  in  the  same  as  they  may  deem  proper;  and  to  provide  the 
manner  of  making  future  amendments  thereto." 1 

The  electorate,  to  which  all  these  questions  were  to  be  submitted, 
was  to  include  2 

"all  free  male  citizens  of  this  state,  of  the  age  of  twenty -one  years  or  upward, 
who  shall  possess  a  freehold  within  this  state,  or  who  shall  have  been  actually 
rated,  and  paid  taxes  to  this  state,  or  who  shall  have  been  actually  enrolled 
in  the  militia  of  this  state,  or  in  a  legal  volunteer  or  uniform  corps,  and  shall 
have  served  therein,  either  as  an  officer  or  private  ;  or  who  shall  have  been 
assessed  to  work  on  the  public  roads  and  highways  and  shall  have  worked  thereon, 
or  shall  have  paid  a  commutation  therefor,  according  to  law." 

Finally  the  act  contained  the  requirement,  new  to  the  public  law 
of  New  York :  — 

"That  it  shall  be  the  duty  of  the  said  convention,  to  submit  their  proposed 
amendments  to  the  decision  of  the  citizens  of  this  state,  entitled  to  vote  under 
this  act,  together  or  in  distinct  propositions,  as  to  them  shall  seem  expedient. 
.  .  .  And  the  proposition  of  such  convention  which  shall  be  approved  by  a 
majority  of  the  vote  at  such  election,  shall  be  deemed  and  taken  to  be  a  part  of 
the  constitution  of  this  state ;  and  that  the  proposition  which  shall  not  be  so  ap- 
proved, shall  be  considered  void  and  of  none  effect."  3 

2.    The  Convention  and  its  Work 

The  result  of  the  plebiscitum  was  a  pronounced  majority  in  favor 
of  the  convention,  and  at  the  appointed  time,  elections  were  accord- 
ingly held  and  delegates  chosen,  who  met  at  the  state  capital  on 

1  Act  of  March  13,  1821,  sec.  V.     See  Proceedings  and  Debates  of  the  New  York 
Constitutional  Convention  of  1821,  p.  22. 

2  Act  of  March  13,  1821,  sec.  I. 

3  Id.  sec.  IX.    See  Proceedings  and  Debates  of  the  New  York  Constitutional  Con- 
vention Of  l82I,  p.  22. 


244  THE   PEOPLE'S    LAW 

August  28,  1821.  There  were  many  among  them  whose  fame  then 
or  later  was  far  more  than  state-wide;  such  as  Chancellor  Kent, 
Chief  Justice  Spencer,  Martin  Van  Buren,  destined  before  many 
years  to  be  Chief  Magistrate  of  the  nation,  Daniel  D.  Tompkins, 
JErastus  Root,  and  many  others.  The  contest  for  popular  ratification 
of  the  new  constitution  itself,  having  been  fought  out  in  the  legisla- 
ture and  at  the  polls,  that  subject  was,  of  course,  not  directly  before 
the  convention.  But  the  lines  were  drawn  anew  on  the  question  of 
future  amendments  and  the  debates  thereon  are  instructive  as  reflect- 
ing the  attitude  of  the  statesmen  of  that  day  toward  the  direct  par- 
ticipation of  the  people  in  the  making  of  laws. 

Early  in  the  session  the  committee  on  future  amendments  re- 
ported the  following  provision  on  that  subject : *  — 

"And  be  it  further  ordained,  &c.  that  if,  at  any  time  hereafter,  any  specific 
amendment  or  amendments  to  the  constitution  shall  be  proposed  in  the  Senate 
or  Assembly,  and  agreed  to  by  two-thirds  of  the  members  elected  to  each  of  the 
two  houses  such  proposed  amendment  or  amendments,  shall  be  entered  on  their 
journals,  with  the  yeas  and  nays  taken  thereon,  and  referred  to  the  legislature 
then  next  to  be  chosen,  and  shall  be  published  for  six  months  previous  to  the  time 
of  making  such  choice,  and  if,  in  the  legislature  next  chosen  as  aforesaid  such 
proposed  amendment  or  amendments  shall  be  agreed  to  by  two-thirds  of  the 
Senate  and  members  of  Assembly  elected,  then  it  shall  be  the  duty  of  the  legisla- 
ture to  submit  such  proposed  amendment  or  amendments  to  the  people,  in  such 
manner  and  at  such  time  as  the  legislature  shall  prescribe ;  and  if  the  people  shall 
approve  and  ratify  such  amendment  or  amendments  by  a  majority  of  the  electors 
qualified  to  vote  for  members  of  Assembly  voting  thereon,  they  shall  become  part 
of  the  constitution  of  the  state." 

When  this  report  came  before  the  committee  of  the  whole  the 
following  interesting  discussion  took  place : 2  — 

"Gen.  Root  moved  to  strike  out  that  part  of  the  report  from  the  word  'and' 
in  the  ninth  line,  to  the  word  'then'  in  the  sixteenth  line,  which  required  a  second 
reference  to  the  legislature,  so  that  an  amendment  which  should  at  any  time  have 
received  the  sanction  of  two-thirds  of  that  body,  shall  be  presented  at  once  for 
the  final  review  of  the  people. 

"  In  support  of  the  amendment,  he  observed  that  he  thought  there  was  too 
much  complexity  in  the  machinery,  and  bolts  and  hoppers  of  the  political  mill, 
before  the  final  process  should  present  the  superfine  flour  in  the  receiver.  No 
amendment  could  ever  be  consummated  in  this  protracted  and  tedious  way. 
The  subject  would  be  forgotten  by  the  people  before  they  ultimately  came  to 
act  upon  it.  It  would  indeed  be  published  in  the  newspapers,  and  read  about 

1  Proceedings  and  Debates,  204.  2  Id.  291-293. 


POPULAR   RATIFICATION    IN   THE   MIDDLE    STATES         245 

as  often  as  the  advertisements  of  mortgage  sales,  which  might  occupy  the  con- 
tiguous columns.  There  was  no  necessity  of  presenting  the  subject  twice  to  the 
legislature. 

"Mr.  Van  Vechten,  as  a  member  of  the  committee  which  had  presented  the 
report,  thought  it  expedient  to  state  a  brief  outline  of  the  reasons  that  had  in- 
duced the  committee  to  offer  it.  The  principle  of  the  report  was  borrowed 
from  the  amendment  to  the  constitution  of  Massachusetts.  The  object  of  re- 
quiring its  passage  by  two-thirds  of  two  successive  legislatures  was,  that  the 
attention  of  the  people  might  be  called  to  the  subject,  and  sufficient  time  given 
for  deliberation  upon  it;  and  it  is  probable  that  the  members  of  the  second 
legislature  would  be  chosen  with  special  reference  to  the  subject.  The  consti- 
tution, he  said,  should  not  be  altered  for  light  and  trivial  causes.  Its  amend- 
ment should  be  the  result  of  calm  and  dispassionate  reflection,  not  of  sudden  and 
strong  excitement. 

"  Mr  Sharpe  was  opposed  to  striking  out.  After  the  constitution  should  be 
made,  he  hoped  it  would  be  united  in  by  the  convention  and  the  people,  and  suf- 
fered to  remain  long  enough  to  give  it  a  fair  experiment.  Sir,  in  this  way,  we  shall 
be  making  amendments  too  cheap.  The  legislature  will  always  be  troubled  with 
propositions  from  various  parts  of  the  state,  to  alter  the  constitution  and  these 
from  one  place  or  another  will  be  received  year  after  year.  Experience  will  war- 
rant this  conclusion,  from  what  has  taken  place  in  regard  to  the  constitution 
of  the  United  States.  Sir,  a  session  of  congress  never  passes  in  which  much  time 
is  not  occupied  in  discussing  amendments  to  that  constitution. 

"  Gen.  Root.  It  seems  that  such  perfection  will  be  obtained  in  the  instrument 
about  to  be  made,  as  never  to  require  amendment.  It  is  to  be  the  very  essence 
of  perfection,  and  will  remain  forever  unalterable.  We  have  been  told  that  we 
must  make  a  constitution  for  future  ages,  when  this  state  shall  become  populous 
and  corrupt.  In  that  case,  it  ought  to  be  so  made  as  to  be  capable  of  alteration, 
so  as  to  check  the  first  appearance  of  corruption.  It  will  undoubtedly  require 
alteration,  as  the  condition  of  society  may  change.  If  the  people  foresee  that  the 
constitution  we  present  to  them  is  susceptible  of  amendment  they  may  adopt  it, 
even  though  some  of  its  provisions  may  be  obnoxious.  But  if  an  insuperable 
barrier  is  placed  in  the  way  of  alterations,  its  adoption  may  be  very  doubtful. 
The  Constitution  of  the  United  States  would  never  have  been  ratified,  had  it 
not  been  capable  of  amendment. 

"  It  had  been  said,  that  the  second  legislature  will  bring  with  them  the  senti- 
ments of  the  people  on  the  subject.  If  so,  where  is  the  benefit  of  referring  it  to 
the  people  at  all  ?  He  thought  the  constitution  of  the  United  States  had  not  been 
sufficiently  liberal  on  this  subject,  and  that  many  salutary  amendments  had  been 
prevented.  In  this  convention  a  bare  majority  is  expected  to  make  such  a  perfect 
constitution  that  the  unhallowed  hands  of  posterity  must  never  pollute  it  with 
their  touch.  He  was  unwilling  that  the  motto  Noli  me  tangere  should  be  inscribed 
upon  it. 

"  Chief  Justice  Spencer  said,  when  he  read  this  report  he  did  think  that  we 
should  unanimously  adopt  it  without  amendment,  and  that  we  should  have  the 
satisfaction  of  agreeing  upon  one  point  at  least.  But  he  now  despaired  of  realizing 


246  THE  PEOPLE'S   LAW 

his  hopes  and  expectations.  The  amendment  of  the  gentleman  from  Delaware 
appeared  to  him  to  be  a  mischievous  one,  though  he  did  not  charge  him  with  that 
intention.  He  explained  the  provisions  of  the  report,  and  thought  they  were 
such  as  every  member  must  approve.  It  afforded  him  pleasure  to  see  incorpo- 
rated in  this  report  one  principle  which  he  had  mentioned  in  a  former  debate,  — 
he  meant  the  principle  of  submitting  the  question  to  the  people  in  the  first  instance, 
whether  they  would  amend  the  constitution.  The  gentleman  from  Delaware 
had  complained  that  there  would  be  great  delay  in  effecting  any  amendment. 
Mr.  S.  did  not  apprehend  any  difficulty  on  this  score.  He  hoped  the  constitution 
would  not  be  left  so  imperfect,  that  the  postponement  of  an  amendment  for  two 
years  at  farthest,  would  be  a  serious  grievance. 

"  Gen.  Tallmadge  concurred  in  the  remarks  that  had  fallen  from  the  Honor- 
able Gentleman  from  Albany  (Mr.  Spencer),  and  had  hoped  that  this  report  would 
have  been  unanimously  adopted.  If  the  motion  of  the  gentleman  from  Delaware 
should  prevail,  it  would  result  that  the  vital  principles  of  the  government  might 
be  entirely  changed  and  its  most  important  and  valuable  institutions  overturned, 
in  the  short  period  of  six  or  seven  months.  It  necessarily  devolved  upon  the  legis- 
lature to  fix  the  time  when  it  should  be  submitted  for  final  ratification  by  the  people : 
and  thus  essential  and  momentous  principles  might  be  introduced  under  the 
impulse  of  sudden  excitement.  Three-fourths  of  the  states,  instead  of  two-thirds, 
are  required  to  sanction  amendments  to  the  constitution  of  the  United  States; 
and  the  time  necessarily  required  to  obtain  that  sanction,  was  very  considerable. 
But  even  there,  it  had  been  shown  from  experience,  that  amendments  were  liable 
to  be  obtained  with  too  great  facility." 

The  report  was  finally  adopted  and  its  provisions  became  a  part 
of  the  new  instrument.1  This  went  to  the  people  as  a  whole  and  not, 
as  had  been  urged,  in  part,  and  was  accompanied  by  an  address  in 
which  the  voters  were  asked  to  make  their  "  choice  between  the  old 
and  the  amended  constitution."  2  The  latter  was  ratified  by  an  over- 
whelming majority,3  and  besides  introducing  and  firmly  establishing 
the  principle  of  popular  ratification  in  New  York,  it  remained  the 
fundamental  law  of  the  state  for  practically  a  quarter  of  a  century. 

In  1846  another  convention  met,  called  in  pursuance  of  a  vote  of 
the  people,  and  framed  an  instrument  which  greatly  simplified  the 
system  of  amendment,4  authorizing  proposals  to  be  submitted  by  a 
majority  vote  of  a  single  legislature  and  to  be  ratified  by  a  majority 
of  those  "  voting  thereon."  This  was  a  combination  of  the  plans  in 

1  New  York   Constitution  (1821),  Art.  VIII;   Poore,  "Charters   and    Constitu- 
tions," II,  1348,  1349. 

2  Proceedings  and  Debates,  658. 

3  The  vote  was  75,422  in  favor  and  41,497  against.     Hammond,  "History  of 
Political  Parties  in  New  York,"  II,  94. 

4  Art.  XIII;    Poore,  "Charters  and  Constitutions,"  II,  1365,  1366. 


POPULAR   RATIFICATION   IN  THE   MIDDLE   STATES        247 

operation  in  Maine  and  Pennsylvania  and  to  it  was  added  a  modifi- 
cation of  the  New  Hampshire  method  of  consulting  the  people  peri- 
odically, the  New  York  instrument  providing  for  submitting  every 
twenty  years  a  proposal  for  a  new  convention.  This  plan  was  widely 
copied  in  the  Western  constitutions,  and  under  it  were  called  the 
New  York  conventions  of  1867  and  1894,  each  of  which  gave  a  new 
fundamental  code  to  the  Empire  state. 

C.    New  Jersey 

The  constitution  proclaimed  in  New  Jersey  in  1776,  like  many 
others  of  that  period,  made  no  provision  for  amendment,  yet  it  re- 
mained in  force  for  almost  two  generations.  However,  "  during  the 
latter  years  of  its  supremacy  a  new  constitution  was  earnestly  advo- 
cated," 1  and  in  1844  the  legislature  passed  an  act  providing  for  the 
election  of  delegates  to  a  constitutional  convention.2  There  seems  to 
have  been  no  preliminary  consultation  of  the  people  regarding  the 
necessity  for  this,  but  the  act  provided : 3  — 

"That  for  the  purpose  of  ascertaining  the  sense  of  the  people,  as  to  the  adop- 
tion or  rejection  of  the  constitution  agreed  upon  by  said  convention,  an  election 
shall  be  held  in  the  several  counties  of  this  state,  on  the  second  Tuesday  in  August 
next ;  and  every  person  qualified  to  vote  for  delegates  to  the  convention  authorized 
by  this  act  shall  be  entitled  to  vote  at  such  election." 

The  old  constitution  imposed  a  property  test,4  but  by  this  statute 

"The  property  qualification  contained  in  that  constitution  was  eliminated, 
and  in  place  of  a  residence  within  the  county  for  one  year  preceding  the  last  election, 
the  act  of  1844  conferred  the  right  of  suffrage  upon  citizens  who  resided  within 
the  state  for  one  year  and  in  the  county  for  five  months  next  preceding  said  elec- 
tion."6 

The  convention  met  at  Trenton  and  completed  its  labors  in  about 
six  weeks.8  Its  amendment  clause7  was  taken  directly  from  the  then 
recent  Pennsylvania  constitution,  and  well  illustrates  the  influence 
which  the  states  of  the  middle  group  were  exerting  upon  each  other. 
The  instrument  received  nearly  seven-eighths  of  the  vote  cast  at  the 

De  Pue,  J.,  in  Bott  v.  Secretary  of  State,  62  N.J.L.  119. 

New  Jersey  Acts,  1843-1844,  in.  *  Id.  sec.  9,  113. 

Art.  Ill;   Poore,  "Charters  and  Constitutions,"  II,  1311. 

Bott  v.  Secretary  of  State,  62  N.J.L.,  119,  121. 

Poore,  "Charters  and  Constitutions,"  II,  1314,  note.          7  Id.  1323,  Art.  IX. 


248  THE   PEOPLE'S   LAW 

election  at  which  it  was  submitted  *  and  as  a  whole  has  never  been 
displaced.  Comprehensive  amendments  were  ratified  in  1875  2  and 
others  in  1890  and  iSpy.3 

D.    Delaware 

The  one  state  in  the  Union  which  has  never  enjoyed  a  popularly 
ratified  constitution  is  Delaware.  As  was  for  a  long  time  the  case 
in  Maryland,  the  promise  of  its  early  history  in  this  regard  has  not 
been  fulfilled.  Delaware's  first  constitution,  proclaimed  in  1776,  gave 
place  only  sixteen  years  later  to  another,  which  though  not  submitted, 
contained  the  first  express  recognition,  in  any  constitution  of  the 
middle  states,  of  the  practice  of  popular  ratification.  After  provid- 
ing for  amendment  by  two  successive  legislatures  according  to  the 
Maryland  system,  but  requiring  a  larger  majority,  the  instrument 
declared :  - 

"No  convention  shall  be  called  but  by  the  authority  of  the  people;  and  an 
unexceptionable  mode  of  making  their  sense  known  will  be  for  them,  at  a  general 
election  of  representatives,  to  vote  also  by  ballot  for  or  against  a  convention,  as 
they  shall  severally  choose  to  do;  and  if  thereupon,  it  shall  appear,  that  a  major- 
ity of  all  the  citizens  in  the  State,  having  a  right  to  vote  for  representatives,  have 
voted  for  a  convention,  the  general  assembly  shall  accordingly,  at  their  next  ses- 
sions, call  a  convention. "  4 

It  was  suggested  above  that  this  was  the  earliest  instance  of  the 
kind  in  the  middle  states.  It  was,  indeed,  one  of  the  earliest  any- 
where in  the  Union;  for  while  Massachusetts  and  New  Hampshire 
had  recognized  the  principle  in  their  constitutions  of  a  few  years  pre- 
vious, the  only  other  state  to  do  so  had  been  Kentucky,  whose  con- 
vention had  adjourned  less  than  two  months  prior  to  that  of  Dela- 
ware.5 It  was  not  until  1831,  however,  that  another  convention  met 
and  it  did  little  more  than  reenact  the  old  constitution  (including  the 
clause  above  quoted)  with  some  important  amendments.6 

Thus,  while  the  remaining  middle  states  were  all  enjoying  popu- 
lar constitutions  before  the  middle  of  the  nineteenth  century,  Dela- 
ware, the  first  of  that  group  to  recognize  the  doctrine  in  a  constitu- 

1  20,276  as  against  3526.  2  Poore,  II,  1325  et  seq. 

3  Bott  v.  Secretary  of  State,  62  N.J.L.  121. 

4  Art.  X ;   Poore,  "  Charters  and  Constitutions,"  I,  287. 
6  Jameson,  "Constitutional  Conventions,"  647,  278. 

8  Id.  289,  and  note. 


POPULAR   RATIFICATION   IN   THE  MIDDLE   STATES       249 

tion,  failed,  and  as  we  shall  see,  still  fails,  to  apply  the  principle  to 
such  an  instrument.1 

Influenced  probably  by  the  example  of  the  neighboring  states  of 
New  Jersey  and  Maryland,  which  had  then  recently  adopted  new 
constitutions,  the  Delaware  legislature  in  1851  passed  an  act  sub- 
mitting to  the  voters  the  question  of  calling  a  convention.  The  pro- 
posal received  a  majority  of  the  votes  cast  thereon,  but  not  the  votes 
of  a  "majority  of  all  the  citizens  of  the  state  having  a  right  to  vote 
for  representatives,"  2  as  required  by  the  existing  constitution.  Never- 
theless a  constituent  act  was  passed  in  1852,  declaring  that  a  ma- 
jority of  votes  had  been  cast  for  the  convention.  The  latter  accord- 
ingly met  at  Dover  on  the  ensuing  December  and  framed  an  instrument 
which,  for  the  first  time  in  Delaware's  history,  was  referred  to  the 
electors  in  1853.  The  result  was  a  rejection  3  in  which  the  suspicion 
cast  on  the  validity  of  the  constituent  body  had,  no  doubt,  some 
share,  and  for  almost  a  generation  there  was  no  further  attempt  at 
constitutional  revision  in  Delaware,  and  then  only  in  the  eighteenth 
century  mode. 

1  It  has,  however,  begun  to  apply  it  in  ordinary  legislation.      See  post,  366. 

2  Jameson,  "Constitutional  Conventions,"  210,  note.  3  Id.  646. 


CHAPTER  XVI 

POPULAR  RATIFICATION  IN  THE  OLD  NORTHWEST  TERRITORY 
A.    Early  Popular  Law-Making 

THE  region  between  the  Great  Lakes  and  the  Ohio  was  the  meet- 
ing place  of  two  distinct  streams  of  immigration,  one  from  the  South, 
moving  northward  across  the  river,  and  the  other  from  New  Eng- 
land. How  the  settlers  carried  with  them  their  stock  of  political 
ideas,  accumulated  in  their  respective  sections,  and  especially  their 
notions  of  popular  government,  and  how  these  were  to  blend  and 
develop  in  the  fertile  soil  of  the  Northwest  Territory  are  well  illus- 
trated and  foreshadowed  by  two  instances  at  the  outset  of  its  history. 

In  October,  1783,  the  General  Assembly  of  Virginia  passed  an 
act *  providing  for  the  location  and  survey  of  certain  lands  northwest 
of  the  Ohio  River,  previously  granted  to  General  George  Rogers  Clark 
and  those  who  had  served  under  him  in  the  then  recent  war.  Inci- 
dentally the  act  provided  for  the  establishment  on  one  portion  of  the 
tract  of  a  town  to  be  known  as  Clarksville  2  and  designated  a  board 
of  ten  trustees  which  should  be  self-perpetuating  by  coaptation.  The 
trustees  met  and  organized  at  Louisville,  just  across  the  river  on  the 
southern  side,3  on  August  7  of  the  following  year  and  proceeded 
to  carry  out  the  terms  of  the  act.4  But  while  these  trustees  were 
vested  with  the  title  for  the  purposes  of  sale,  and  with  power  to 
determine  disputes  concerning  the  boundaries  of  the  lots,  there  ap- 
pears to  have  been  no  provision  for  the  permanent  government  of  the 

1  Hening,  Virginia  Statutes  at  Large,  II,  Chap.  XXI. 

2  Doubtless  in  honor  of  General  Clark.     His  later  years  were  passed  at  this  place. 
Thwaites,  "  Clark,"  70. 

3  See  note  by  Carl  Evans  Boyd,  American  Historical  Review,  II,  691.     It  is  "now 
but  a  cluster  of  dwellings  on  the  outskirts  of  New  Albany,  a  manufacturing  town  which 
is  rapidly  absorbing  all   the  neighboring  territory."  —  Thwaites,  "  On   the    Storied 
Ohio,"  220. 

4  American  Historical  Review,  II,  691. 

250 


RATIFICATION    IN   THE   OLD   NORTHWEST   TERRITORY       251 

town  other  than  the  guaranty  that  the  purchasers  should  "  en  joy  all 
the  rights,  privileges,  and  immunities  which  the  freeholders  and  in- 
habitants of  other  towns  in  this  state,  not  incorporated,  hold  and 
enjoy."  *  Here  again  we  find  a  recurrence  of  the  phenomenon  which 
we  have  noticed  so  often  in  New  England  and  the  South,  of  a  newly 
formed  community,  cut  off  from  all  present  connection  with  former 
political  associates,  improvising  a  governmental  machinery  of  its 
own  and  instinctively  reproducing  primitive  and  archaic  forms.  The 
settlers  assembled  in  a  folkmoot  which  is  described  in  its  record  2  as 
"a  Convention  held  at  Clarksville  on  thursday  the  2yth  of  January, 
1785,  by  the  Inhabitants  of  the  Town  for  the  purpose  of  forming  some 
Laws  or  regulations  to  remedy  sundry  grievances  which  the  said  In- 
habitants have  hitherto  lain  under."  After  selecting  William  Clark 
chairman,  the  "convention"  proceeded  to  adopt  a  series  of  seven 
"Resolves,"  the  first  of  which  recited:  — 

"That  whereas  the  Honble  the  Congress  of  the  united  States  have  not  as 
yet  adopted  any  mode  or  plan  for  the  Regulation  and  Government  of  this  our 
infant  Settlement,  and  it  is  become  necessary  to  form  certain  Regulations  for  the 
better  security  of  our  Lives  and  property;  The  Inhabitants  of  this  Town  have  a 
right  to  assemble  from  time  to  time  and  enact  suitable  Laws  to  maintain  peace 
and  tranquility  among  the  People ;  and  which  may  not  be  incompatuble  with  the 
Constitution  of  the  united  States,  or  the  Resolutions  of  Congress." 

The  remaining  "Resolves"  provide  for  the  establishment  of  a 
judicial  tribunal  of  four  members  with  power  to  hear  and  determine 
controversies,  and  enforce  its  judgments  as  in  the  case  of  the  com- 
munities of  the  South.3  This  jural  characteristic  was  its  most  con- 
spicuous one,  and  while  it  lacked  some  of  the  covenant  features  of  the 
Southern  instruments,  this  piece  of  legislation  was  on  the  whole  a 
fairly  complete  and  satisfactory  code.4  But  its  chief  interest  lies  in 
the  fact  that  it  was  the  first  popular  constitution  in  the  old  North- 

1  Hening,  Statutes,  II,  387. 

2  Draper    Mss.,  Wm.  Clark    Papers,  I,  103,  105,  reprinted   in    American  His- 
torical Review,  II,  691-693. 

3  See  ante,  Chap.  VIII. 

4  At  least  no  alteration  seems  to  have  been  made  for  nearly  two  years  and  then 
only  in  an  unimportant  detail.     On  November  12,  1787,  a  "Convention"  of  "a  majority 
of  the  Inhabitants  of  the  Town.  .  .  .     Resolved,  that  whereas  the  Sixth  Resolution  held 
in  this  Town  the  27th  day  of  January,  1785,  directing  the  Goods  of  a  Debtor  to  be  sold 
a  Short  period  [upon  eight  days'  notice]  after  judgment  obtained  against  them,  is  found 
to  be  oppressive,  the  same  is  hereby  repealed  and  made  void."  —  American  Historical 
Review,  II,  693. 


2$2  THE   PEOPLE'S   LAW 

west  Territory.  Not  only  did  it  antedate  by  a  considerable  time  the 
famous  ordinance  of  1787,  but  it  sprang  directly  from  the  people  in- 
stead of  being,  as  in  the  case  of  the  latter,  imposed  upon  them  by  an 
outside  authority.  Crude  and  imperfect,  the  Clarksville  compact 
contained  the  germs  and  essentials  of  the  later  state  constitutions  of 
the  Northwest,  —  the  declaration  of  the  rights  and  sovereignty  of  the 
people,  and  the  framework  of  government,  —  and  gave  promise  of 
what  was  to  follow. 

The  other  instance  of  early  popular  law-making  in  the  Northwest 
occurred  in  what  was  known  as  the  "Miami  Purchase,"  which  lay 
between  two  rivers  of  that  name.  This  region  was  colonized  by  the 
"  Miami  Company,"  which  had  been  organized  in  New  Jersey,  but  it 
probably  included  many  from  the  Ohio  Company,  whose  colonists 
had  come  directly  from  New  England,1  and  therefore  represents  the 
political  experience  of  the  North  as  the  Clarksville  compact  does  that 
of  the  South. 

"When  these  settlements  were  commenced,"  says  Judge  Burnet,2  "by  emi- 
grants who  resorted  to  them,  early  in  1788,  provision  had  not  been  made  for  the 
regular  administration  of  justice.  Judicial  Courts  had  not  been  organized,  and 
the  inhabitants  found  themselves  in  an  unpleasant  situation,  as  they  were  exposed 
to  the  depredations  of  dishonest,  unprincipled  men,  without  the  means  of  legal 
redress.  To  remedy  that  evil  the  people  assembled  to  consult  and  devise  a  plan 
for  the  common  safety;  they  chose  a  Chairman  and  a  Secretary,  and  proceeded 
to  business.  The  meeting  having  resulted  in  the  adoption  of  a  code  of  By-Laws 
for  the  government  of  the  settlement,  in  which  they  prescribed  the  punishment 
to  be  inflicted  for  various  offences,  —  organized  a  Court,  —  established  trial  by 
jury,  —  appointed  Mr.  McMillan  Judge,  and  John  Ludlow  Sheriff. 

"  To  these  regulations  they  all  agreed,  and  each  gave  a  solemn  pledge  to  aid 
in  carrying  them  into  effect.' ' 

B.   Ohio 

These  early  instances  proved  that  the  first  settlers  of  the  North- 
west Territory  were  ready  for  the  task  of  popular  constitution-making. 
That  they  did  not  at  first  undertake  it  was  due  to  no  act  of  theirs. 
The  first  state  constitution  in  the  Northwest  was  authorized  by  the 
enabling  act  for  Ohio  in  1802,  which,  as  is  elsewhere  shown,3  pro- 

1  See  Burnet's  "  Notes  on  the  Northwest  Territory,"  46-52. 

2  Id.  57- 

3  See  post,  Chap.  XIX. 


RATIFICATION   IN   THE   OLD   NORTHWEST   TERRITORY      253 

vided  for  a  convention  "  to  form  a  constitution  and  state  government,"  l 
and  allowed  the  people  no  actual  share  in  the  process.  It  was  natural 
that  these  colonists  of  the  Northwest,  trained  in  the  school  of  local 
self-government  and  independence,  should  resent  this  autocratic 
exercise  of  congressional  authority.  At  an  assembly  of  the  citizens 
of  Dayton  and  vicinity,  on  September  26,  1802,  a  series  of  resolu- 
tions was  unanimously  adopted  declaring  that  — 

"we  consider  the  late  law  of  Congress  for  the  admission  of  this  Territory  into  the 
Union,  as  far  as  it  relates  to  the  calling  a  Convention,  and  regulating  the  election 
of  its  members,  as  an  act  of  legislative  usurpation  of  power  properly  the  province 
of  the  Territorial  Legislature,  bearing  a  striking  similarity  to  the  course  of  Great 
Britain,  imposing  laws  on  the  provinces.  We  view  it  as  unconstitutional,  as  a 
bad  precedent,  and  unjust  and  partial  as  to  the  representation  in  the  different 
counties.' ' 2 

An  emphatic  protest  was  made  against  the  transfer  of  Wayne 
County  (including  Detroit),  and  the  assembly  voiced  its  demands  for 
a  popular  initiative  as  follows :  — 

"We  wish  our  Legislature  to  be  called  immediately  to  pass  a  law  to  take  the 
enumeration ;  to  call  a  Convention ;  and  to  regulate  election  of  members  to  the 
same,  and  also  the  time  and  place  for  the  meeting. " 3 

Nevertheless,  this  first  of  the  enabling  acts  remained  unaltered, 
and  under  it  an  election  of  delegates  was  held,  and  the  convention 
assembled  at  Chillicothe,  November  i.  Governor  St.  Clair  addressed 
the  convention,  denouncing  the  enabling  act,  and  repeating  the  objec- 
tions of  its  opponents.  The  delegates,  however,  by  an  all  but  unani- 
mous vote,4  decided  to  proceed  with  their  task.  The  instrument 
framed  by  this  convention  was  not,  of  course,  referred  to  the  people. 
But  it  contained  a  clause  5  (the  first  of  its  kind  in  the  Northwest 
Territory),  requiring  them  to  be  directly  consulted  in  calling  future 
conventions.  And  this  clause  was  not  similar  to  any  which  had  yet 
appeared  in  the  constitution  of  any  Eastern  state ;  it  embodied  almost 
literally  the  provision  of  the  Tennessee  constitution  of  six  years  before, 

1  United  States  Statutes  at  Large,  II,  174,  sec.  5. 

2  Burnet,  "Notes  on  the  Early  Settlement  of  the  Northwest  Territory,"  501. 

3  Id. 

4  The  one  negative  vote  out  of  thirty-five  members  was  that  of  Judge  Ephraim 
Cutler  of  Marietta,  son  of  Dr.  Manasseh  Cutler,  one  of  the  reputed  authors  of  the 
famous  ordinance  of  1787.     See  Hinsdale,  "The  Old  Northwest,"  322,  323. 

5  Ohio  Constitution,  1802,  Art.  VII,  sec.  5 ;  Poore,  "  Charters  and  Constitutions," 
II,  1461. 


254  THE   PEOPLE'S    LAW 

but  it  deferred  its  operation  until  1806,  and  provided  that  it  should 
not  be  used  for  introducing  slavery.  Truly  here  was  a  curious  blend- 
ing of  New  England  with  Southern  ideas.  Of  the  balance  of  the 
convention's  work,  an  Ohio  historian  has  said : *  — 

"The  instrument  so  adopted,  it  would  be  respectful  to  pass  in  silence.  It 
was  framed  by  men  of  little  experience  in  matters  of  state.  .  .  .  With  such  a 
model  of  simplicity  and  strength  ...  as  the  national  constitution  which  had 
just  been  formed,  the  wonder  is  that  some  of  its  ideas  were  not  borrowed.  It 
seems  to  have  been  studiously  disregarded." 

Nevertheless,  the  same  author  thinks  that  — 

"In  the  presence  of  the  popular  manifestations,  both  before  and  after  this 
vote,  it  is  idle  to  contend  that  the  people  of  the  territory  were  averse  to  it." 2 

Some  "popular  manifestations"  which  we  have  noticed  would 
seem  to  indicate  quite  the  contrary.  Still  the  fact  remains  that  this 
unratified  and  objectionable  constitution  continued  in  force  almost 
half  a  century. 

By  1849  the  movement  for  popular  ratification  in  the  surround- 
ing states  had  been  practically  completed,  and  in  that  year  a  majority 
of  Ohio  electors  voted  for  a  constitutional  convention.  In  the  follow- 
ing year  a  constituent  act  was  passed,  providing  that,  "the  amend- 
ments, revisions  or  alterations  agreed  upon  by  said  convention,  shall 
be  submitted  to  the  people  for  their  adoption  or  rejection,  by  a  vote 
for  that  purpose,  at  such  time  as  the  convention  shall  direct."  3  The 
body  thus  provided  for  assembled  at  Columbus  in  May,  1850,  but 
adjourned  in  July,  on  account  of  the  cholera  epidemic,  to  reassemble 
at  Cincinnati  in  December.  The  instrument  framed  by  it  provided 
expressly  for  its  own  submission,  retained  the  clause  regarding  a 
consultation  of  the  people  relative  to  future  conventions,  and  added, 
apparently  from  the  second  Michigan  constitution  which  had  just 
been  framed,  the  Maine  system  of  submitting  amendments,  and  the 
New  Hampshire  idea  of  periodical  resubmission. 

But  it  did  more  than  borrow  from  other  states,  for  it  contained 
the  following  provision,  —  the  first  of  its  kind  in  any  state  constitu- 
tion :  — 

"No  amendment  of  this  constitution  agreed  upon  by  any  convention  assembled 
in  pursuance  of  this  article  shall  take  effect  until  the  same  shall  have  been  sub- 

1  King,  "  Ohio"  (American  Commonwealths),  290,  291.  2  Id.  290. 

3  Ohio  Laws,  1849-1850,  22,  sec.  7. 


RATIFICATION   IN   THE   OLD   NORTHWEST   TERRITORY      255 

mitted  to  the  electors  of  the  State,  and  adopted  by  a  majority  of  those  voting 
thereon."  1 

We  shall  discover  a  tendency  to  follow  this  in  the  constitutions 
framed  at  the  close  of  the  nineteenth  century. 

This  second  Ohio  instrument  was  adopted  by  a  substantial,2 
though  not  pronounced,  majority,  and  in  spite  of  an  attempt 3  in  1874 
to  displace  it,  remains  the  organic  law  of  the  state. 

C.   Indiana 

Notwithstanding  the  first  instance  of  popular  law-making  in  the 
Northwest  Territory  occurred  within  the  present  boundaries  of  the 
Hoosier  state,4  its  people  were  not  allowed  to  participate  directly  in 
the  formation  of  its  first  constitution.  The  enabling  act,  passed  by 
Congress  in  1816,  pursuant  to  a  petition  from  the  territorial  legislature 
adopted  in  the  preceding  year,  contained  the  phraseology  common  to 
such  enactments  at  that  period,5  and  authorized  a  convention  "to 
form  a  constitution  and  state  government  for  the  people."  8  Such  a 
body  met  at  Corydon,  then  the  territorial  capital,  on  June  10  of  the 
same  year.  Its  personnel  was  not  distinguished,7  and  it  remained 
in  session  but  twenty  days.  The  chief  interest  centred  in  slavery, 
which  the  new  constitution  prohibited,  and  the  instrument  was  pro- 
claimed without  submission  as  the  enabling  act  designed  that  it 
should  be.  But  though  these  farmer  statesmen  of  territorial  Indiana 
did  not,  and  probably  could  not,  leave  their  work  to  the  people,  they 
showed  themselves  in  touch  with  the  democratic  movement  of  the 
times  by  inserting  in  their  constitution 8  the  following :  — 

"Every  twelfth  year  after  this  constitution  shall  have  taken  effect,  at  the 
general  election  held  for  governor,  there  shall  be  a  poll  opened,  in  which  the 
qualified  electors  of  the  State  shall  express,  by  vote,  whether  they  are  in  favor  of 
calling  a  convention  or  not ;  and  if  there  should  be  a  majority  of  all  the  votes  given 

1  Ohio  Constitution,  1851,  Art.  XVI,  sec.  3;  Poore,  II,  1479. 

2  The  vote  was  125,564  to  109,276,  not  including  two  counties  received  too  late  to 
be  counted. 

3  Jameson,  "  Constitutional  Conventions,"  650. 

4  The  Clarksville  Compact,  see  supra,  251.  5  See  post,  Chap.  XIX. 
0  United  States  Statutes  at  Large,  Chap.  LVTI,  sec.  4,  p.  289. 

7  "The  majority  of  the  members  were  frontier  farmers  who  had  a  general  idea  of 
what  they  wanted,  and  had  sense  enough  to  let  their  more  erudite  colleagues  put  it  in 
shape."  —  Dunn,  "Indiana,"  424. 

8  Art.  VIII;  Poore,  "Charters  and  Constitutions,"  I,  508. 


256  THE  PEOPLE'S   LAW 

at  such  election,  in  favor  of  a  convention,  the  governor  shall  inform  the  next 
general  assembly  thereof,  whose  duty  it  shall  be  to  provide  by  law  for  the  election 
of  the  members  to  the  convention,  the  number  thereof,  and  the  time  and  place  of 
their  meeting,  which  law  shall  not  be  passed  unless  agreed  to  by  a  majority  of 
all  the  members  elected  to  both  branches  of  the  general  assembly;  and  which 
convention,  when  met,  shall  have  it  in  their  power  to  revise,  amend  or  change  the 
constitution." 

This,  it  will  be  seen,  was  not  the  provision  which  Ohio  had  copied 
from  Tennessee.  It  was  more  like  the  Kentucky  clause,  framed 
nearly  a  quarter  of  a  century  previous,  and  shows  the  influence  of 
those  who,  like  the  Clarksville  settlers,  had  come  into  the  state  from 
the  South.  But  it  indicates  also  the  influence  of  New  England  ideas. 
For  this  plan  of  periodical  consultation  of  the  people  had  appeared 
in  the  New  Hampshire  constitution  of  1784,  and,  as  yet,  nowhere 
else.  Here  again,  therefore,  the  ideas  of  the  East  and  the  South  were 
blended. 

The  first  settlers  within  the  borders  of  Indiana  who  set  up  a  gov- 
ernment of  the  people  at  Clarksville  established  a  precedent  which 
was  never  wholly  departed  from  in  the  Hoosier  State.  When,  a  genera- 
tion after  the  first  convention,  it  seemed  advisable  to  call  another,  the 
legislature  first  passed  an  act  for  taking  the  sense  of  the  voters  on  the 
question.1  And  when  the  sovereign  people  had  duly  given  its  assent 
to  this,  a  convention  to  frame  a  constitution  was  provided  for  by  a 
statute  which  required  that  "there  shall  be  a  vote  taken  on  the  .  .  . 
adoption  or  rejection  of  said  constitution,"  2  and  the  instrument  thus 
provided  for  was  ratified  by  the  electors,  and  remains  to  this  day  the 
fundamental  code  of  Indiana.3 

D.   Illinois 

The  enabling  act  of  Illinois,  like  those  of  the  two  states  which 
had  preceded  it  from  the  Northwest  Territory,  left  it  to  a  convention 
to  frame  a  constitution  and  state  government.4  But  in  the  territory 
itself,  democratic  ideas  appear  to  have  gained  an  early  foothold,  for 
we  are  told  that  "in  the  election  of  members  to  the  convention,  the 

1  Indiana  Laws  (1848-1849),  Chap.  XXXIV. 

2  Id.  1850,  Chap.  XXIX,  sec.  2,  p.  54. 

3  Jameson,  "Constitutional  Conventions,"  651. 

4  3  United  States  Statutes  at  Large,  428.   This  act,  like  that  for  Indiana,  was  passed 
in  response  to  a  petition  from  the  territorial  legislature.     See  Ford,  "  History  of  Illinois," 
19. 


RATIFICATION   IN   THE   OLD   NORTHWEST   TERRITORY      257 

only  questions  made  before  the  people  were  the  right  of  the  constit- 
uent to  instruct  his  representative,  and  the  introduction  of  slavery, 
which  were  debated  with  great  earnestness  during  the  canvass."  l 
The  desire  of  the  people  of  Illinois  to  share  directly  in  the  making 
of  laws  was  thus  evident  from  the  beginning,  and  has  been  abundantly 
manifested  throughout  the  later  history  of  the  state. 

The  convention  thus  provided  for  and  chosen  assembled  at 
Kaskaskia  in  the  summer  of  i8i8.2  "It  was  composed,"  writes  a 
local  historian,3  "of  thirty-three  members,  chiefly  farmers  of  limited 
education,  but  many  of  whom  were  not  without  fine  natural  abilities, 
sound  judgment  and  experience  in  public  affairs."  The  task  imposed 
upon  these  western  Cincinnati  was  not,  however,  one  requiring 
original  or  constructive  statesmanship.  They  had  before  them  the 
then  recent  example  of  the  convention  of  Indiana,  with  which  state 
theirs  had  been  originally  connected,  and  they  appear  to  have  made 
good  use  of  it. 

"The  first  constitution  of  Illinois,"  says  the  author  last  quoted,4  "was 
in  its  principal  provisions  a  copy  of  the  then  existing  constitutions  of  Kentucky, 
Ohio  and  Indiana.  The  bill  of  rights  is  almost  identically  the  same  in  each, 
with  the  exception  of  the  clauses  relating  to  slavery.  Many  of  the  articles  are 
exact  copies  in  wording  although  differently  arranged  and  numbered." 

But  there  was  one  provision  in  this  new  instrument  which  was 
materially  different  from  anything  in  the  constitutions  of  Indiana  or 
Kentucky.  This  was  the  article  relative  to  the  calling  of  constitu- 
tional conventions,  which  was,  like  that  of  Ohio,  almost  a  literal  copy 
of  the  Tennessee  provision  of  1796.  This  fact  seems  to  have  escaped 
the  notice  of  the  historians,  but  its  explanation  appears  to  lie  in  an- 
other fact  which  all  historians  of  the  convention  do  notice.  "The 
principal  member  of  it,"  says  Governor  Ford,5  "was  Elias  K.  Kane, 
late  a  senator  in  Congress  ...  to  whose  talents  we  are  mostly  in- 
debted for  the  peculiar  features  of  the  constitution." 

Mr.  Moses,6  after  remarking  that  Kane  was  one  of  the  five  lawyers 

1  Ford,  25. 

2  Moses,  "Illinois,  Historical  and  Statistical,"  I,  282  et  seq.,  gives  what  seems  to 
be  the  best  account  of  this  convention.     He  says:  "There  is  no  official  record  of  its 
proceedings  among  the  state  archives.     If  any  was  made  or  published,  neither  the 
original  nor  any  copy  has  been  preserved." 

3  Id.  4  Id.  284.  8  "History  of  Illinois,"  24. 

8  "Illinois,    Historical    and    Statistical,"    283.     Cf.    Stevenson,    "Constitutional 
Conventions,"  etc.,  Pub.  111.  State  Hist.  Lib.  22. 
s 


258  THE   PEOPLE'S    LAW 

in  the  convention,  observes  that  he  "was  its  leading  spirit,  and  to  him 
must  be  awarded  the  credit  of  the  arrangement,  as  well  as  of  the  com- 
position, wherever  original  matter  was  introduced  into  the  instru- 
ment adopted. " 

Now  Kane,  though  a  New  Yorker  by  birth,  had  "  removed  in 
early  youth  to  Tennessee."  1  "  After  having  been  admitted  to  the 
bar  he  commenced  the  practice  of  law  in  Nashville."  2  As  a  lawyer, 
he  must  have  been  familiar  with  the  constitution  of  his  adopted  state, 
and  its  environment  appears  from  his  later  career  to  have  had  more 
influence  upon  him  than  that  of  his  nativity,  for  he  became  in  Illinois 
an  advocate  of  slavery.3 

The  source,  then,  of  this  provision  for  consulting  the  people  in 
the  first  constitution  of  Illinois,  is  no  longer  a  mystery.  The  man 
who  is  most  nearly  entitled  to  be  called  its  author  borrowed  one  of 
the  distinctive  features  of  that  constitution  which  he  knew  most 
about.  Thus  the  idea  of  consulting  the  people  directly  in  constitu- 
tional changes  came  into  Illinois  not  from  New  England,  whose 
exclusive  property  it  is  sometimes  claimed  to  be,  but  from  the  far 
South.  It  is  an  echo  of  those  compacts  which  had  begun  to  appear 
among  the  frontiersmen  of  Tennessee  nearly  half  a  century  before  — 
a  seed  sprouting  in  the  southern  Alleghanies,  but  carried  by  chance 
far  from  its  mountain  home  to  find  lodgment  and  growth  in  the 
favorable  soil  of  the  northwestern  prairies.  Such  a  phenomenon 
the  botanist  beholds  when  he  finds  a  strange  fauna  in  regions  remote 
from  its  habitat  and  speculates  upon  the  agencies  that  have  brought 
it  thither.  By  such  curious  and  yet  natural  modes  has  our  constitu- 
tional development  proceeded  ! 

The  Kaskaskia  convention  closed  a  session  of  twenty-three  days 
after  declaring,  as  it  was  expected  to  do,4  that  its  work  was  law.  But 
it  was  not  long  until  the  provision  for  consulting  the  people  was  util- 

1  Ford,  "History  of  Illinois,"  24. 

2  Washburn,  "  The  Edwards  Papers,"  Chicago  Historical  Society's  Collections, 
III,  560,  note. 

3  Id.  124,  note. 

4  Mr.  Moses   ("Illinois,  Historical  and  Statistical,"  284-285)  criticises  the  work 
of  the  convention  because  it  left  too  little  power  in  the  hands  of  the  people.     They  were 
allowed  to  elect  the  incumbents  of  but  five  offices  and  "they  were  not  even  permitted 
to  have  a  voice  in  the  adoption  of  their  fundamental  law."     But  clearly  nothing  else 
was  contemplated  by  an  enabling  act  which  directed  the  convention  "  to  form  (not  merely 
frame)  a  constitution,"  and  contained  no  authority  express  or  implied  to  delegate  such 
power  or  any  part  of  it. 


RATIFICATION    IN    THE    OLD   NORTHWEST   TERRITORY       259 

ized,  and  this,  strangely  enough,  by  the  advocates  of  slavery.  That 
institution  had  been  only  partially  recognized  by  the  instrument  of 
1818.  In  1823  the  legislature  passed,  after  much  manoeuvring  and 
excitement,  a  resolution  asking  the  electors  to  determine  whether  a 
convention  should  be  called  to  frame  a  new  constitution.  It  was 
well  understood  that  this  proposal  was  in  the  interests  of  slavery 
extension  and  the  canvass  which  followed  was  both  prolonged  and 
exciting.1  Even  the  Covenanters  who,  up  to  this  time,  had  ab- 
stained from  any  participation  in  elections,  now  turned  out  to  vote 
against  slavery.2  The  vote  on  the  proposal  on  August  2,  1824, 
exceeded  that  on  candidates  for  congress  who  were  voted  for  at 
the  same  election.  The  proposal  was  defeated  by  the  decisive 
vote  of  6640  to  4972.  But  the  people  of  Illinois  had  received 
a  powerful  object  lesson  in  popular  participation  in  constitution- 
making. 

More  than  a  score  of  years  passed  before  the  question  of  calling 
a  convention  was  again  submitted  to  the  people  of  Illinois.  The 
growth  of  the  state,  however,  made  necessary  some  changes  in  its 
fundamental  law,  and  the  legislature  which  assembled  in  1846  passed 
a  resolution  submitting  the  question  to  the  voters.  The  election 
occurred  in  August  of  the  following  year,3  and  the  proposal  was 
adopted  by  a  favorable  vote  two  and  one-half  times  as  great  as  that 
in  opposition.4  Thereupon  the  legislature  passed  the  constituent 
act,  which  contained  the  following  significant  provision:  — 

"The  said  amendments,  revisions  or  alterations  shall  be  submitted  by  the 
convention  to  the  people,  for  their  adoption  or  rejection,  at  the  election  to  be 
held  on  the  fourth  Monday  in  October,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-seven,  and  every  person  entitled  to  vote  by  the  constitu- 
tion and  laws  now  in  force  may  vote  thereon,  in  the  election  district  in  which  he 
shall  reside,  and  not  elsewhere. " 6 

Popular  ratification  had  now  become  part  of  the  written  law  of 
Illinois.  The  convention  which  met  at  Springfield  in  pursuance 

1  See  Moses,  316  et  seg.,  for  an  account  of  this  period. 

2  Ford,  "History  of  Illinois,"  54. 

8  Moses,  511.  Ex-Vice-President  Stevenson  ("The  Constitutional  Conventions 
and  Constitutions  of  Illinois,"  Pub.  No.  8  of  the  111.  State  Hist.  Lib.,  24)  says  that  the 
election  took  place  in  1846. 

4  Moses,  511,  note.     The  figures  were  58,339  against  23,013  in  a  total  vote  of 
99,654. 

5  Illinois  Laws,  1847,  35,  sec.  6,  p.  35. 


260  THE   PEOPLE'S   LAW 

of  this  act,  not  only  retained  the  provision  borrowed  from  Tennessee 
for  consulting  the  people  in  calling  conventions,  but  also  provided 
for  the  submission  by  two  successive  legislatures  of  constitutional 
amendments  directly  to  the  people.1 

When  the  convention  submitted  its  work,  it  accompanied  the  sub- 
mission with  an  address  in  which  it  was  declared :  — 

"Availing  themselves  of  the  light  furnished  by  a  highly  advanced  state  of 
political  science  your  delegates  have  sought  to  adapt  their  efforts  to  the  demands 
of  the  growing  interests  and  population  of  the  state,  consulting  at  all  times  the 
popular  will  whenever  it  could  be  ascertained."  2 

The  new  constitution  was  decisively  ratified  by  the  people  and 
became  the  fundamental  law  of  Illinois  in  April,  i848.3 

The  new  revision  clause  was  applied  in  1851,  when  an  amendment 
relating  to  the  state's  revenue  system  was  ratified.4 

The  Lincoln  and  Douglas  contest  for  the  senatorship  seven  years 
later  was  really  a  plebiscite,  for  not  only  was  the  plan  of  popular 
election  applied  for  the  first  time  to  that  office  but  it  was  well  un- 
derstood that  the  voters  were  expressing  themselves  directly  upon 
the  plans  proposed  by  the  respective  candidates  for  dealing  with 
slavery  in  the  territories. 

In  1 86 1,  after  a  consultation  of  the  people,  and  pursuant  to  a 
legislative  act,  delegates  were  chosen  to  a  convention  at  Springfield 
the  following  year.5  It  seems  to  have  been  designed  to  remedy 
certain  defects  in  the  existing  instrument,  but  the  voters  demonstrated 
that  their  part  in  the  making  was  not  a  perfunctory  one  by  rejecting 
it.6 

The  latest  constitution  of  Illinois  came  from  a  convention  which 
met  at  Springfield  in  December,  1869,  and  continued  in  session  until 
May,  1870.  It  contained  the  provision  of  its  predecessors  for  con- 
sulting the  people  and  added  a  requirement  that  the  instrument 
framed  by  any  such  convention  should  be  submitted  to  the  voters.7 
More  than  this,  it  brought  even  the  delegate  system  nearer  to  the 
people  by  providing  a  plan  of  minority  representation.8  The  entire 

1  Art.  XII,  sec.  2  ;  Poore,  1, 465.     But  one  article  could  be  amended  at  a  time,  and 
a  "majority  of  all  the  electors  voting  at  such  election  for  members  of  the  [house"  was 
required  in  order  to  ratify. 

2  Stevenson,  "Constitutional  Conventions,"  etc.,  25.         3  Id.         4  Poore,  I,  470. 
5 Stevenson,  "Constitutional  Conventions,"  etc.,  27.  6  Id. 

7  Art.  XIV,  sec.  i ;  Poore,  I,  490. 

8  This  was  a  favorite  measure  of  the  late  Joseph  Medill,  then  of  the  Chicago  Tribune. 


RATIFICATION   IN   THE   OLD   NORTHWEST   TERRITORY       261 

instrument  was  ratified  by  an  overwhelming  vote,1  and  remains  in  force 
as  one  of  the  best  types  of  the  later  nineteenth  century  constitutions. 
The  state  of  Illinois  thus  boasts  a  record  of  three  quarters  of  a 
century  of  constitution-making,  marked  by  a  steadily  increasing 
share  awarded  to  the  people,  and  it  opened  the  century  with  a  new 
chapter  by  adopting  the  advisory  initiative  and  referendum  by  legis- 
lative act.2 

E.    Michigan 

Constitution-making  in  Michigan  began  without  the  hindrance 
of  an  enabling  act  such  as  had  practically  eliminated  popular  initia- 
tive in  the  southern  tier  of  states  formed  from  the  Northwest  Terri- 
tory. And  while  the  latter  had  advanced  to  the  point  where  they 
provided  in  their  respective  instruments  for  an  appeal  to  the  people 
in  calling  future  conventions,  the  first  actual  submission  to  the  elec- 
tors within  that  territory  was  made  in  the  North  American  Chersonese. 

In  January,  1835,  the  "legislative  council"  of  Michigan  passed 
an  act  providing  for  a  constitutional  convention  and  the  election 
of  delegates  thereto.3  No  provision  had  been  made  for  taking  the 
sense  of  the  people  on  the  question,  but  delegates  were  chosen  in 
the  ensuing  April  and  on  the  nth  of  the  next  month  the  convention 
met  at  Detroit.4  It  remained  in  session  considerably  longer 5  than 
the  conventions  of  Indiana  and  Illinois  had  done,  and  its  work  was 
more  permanent  and  satisfactory.  Judge  Cooley  says 6  that  in  the 
scope  and  delimitation  of  its  provisions  "it  may  well  be  regarded 
as  a  model."  It  was  the  provisions  for  its  own  adoption  and  amend- 
ment, however,  that  render  the  instrument  a  landmark  in  the  con- 
stitutional history  of  the  Northwest. 

Although  the  constituent  act  contained  no  requirement  or  hint 
of  submission,  the  convention  inserted  in  the  schedule  7  of  the  pro- 
posed draft  the  following  clause :  — 

"This  constitution  shall  be  submitted  at  the  election  to  be  held  on  the  first 
Monday  in  October  next,  and  on  the  succeeding  day,  for  ratification  or  rejection 
to  the  electors  qualified  by  this  constitution  to  vote  at  all  elections  and  if  the  same 

152,227  to  35,443.  2  Illinois  Laws,  1901,  198. 

Michigan  Laws,  1834-1835,  72-74. 

See  Cooley,  "Michigan"  (Commonwealth  Series),  214. 

It  adjourned  June  29.     See  Poore,  I,  983,  note. 

"  Michigan,"  225.  7  Sec.  9;  Poore,  I,  992. 


262  THE   PEOPLE'S    LAW 

be  ratified  by  the  said  electors  the  same  shall  become  the  constitution  of  the  state 
of  Michigan." 

But  this  was  not  the  only  feature  by  which  these  Michigan  con- 
stitution-makers showed  themselves  to  be  in  advance  of  their  imme- 
diate neighbors.  They  provided  l  for  submitting  to  the  people  all 
future  amendments  to  their  new  instrument,  and  they  did  this  by 
incorporating  almost  verbatim 2  the  amending  clause  of  the  New 
York  constitution  of  fourteen  years  previous.  This  had  been  bor- 
rowed, as  we  have  seen,  with  slight  change  of  verbiage,  from  the 
Connecticut  instrument  of  1818.  But  they  went  beyond  either  of 
these  states  in  another  important  particular.  Heretofore  constitu- 
tional provisions  for  amendment  had  contemplated  only  a  partial 
change  in  the  instrument  of  which  they  formed  a  part.  But  this 
Michigan  constitution  provided  expressly  for  the  submission  at  any 
time  by  the  legislature  of  a  proposal  for  a  convention  "to  revise 
or  change  this  entire  constitution."  3 

Borgeaud  says  that  this  instrument  "was  at  that  time  considered 
the  model  of  democratic  institutions."  4  It  was  ratified  pursuant 
to  its  own  provisions,  by  a  pronounced  majority 5  of  the  voters,  and 
transmitted  to  Congress  by  President  Jackson  accompanied  with 
a  special  message.6 

In  1850  a  new  constitution  was  adopted  whose  revision  clause 
bears  evidence  of  having  been  copied  from  the  then  recently  rejected 
constitution  of  Wisconsin.  There  was  the  same  blending  of  the 
Maine  system  of  submitting  amendments  by  one  legislature  7  and 
the  New  Hampshire  method  of  periodically  consulting  the  people 
as  to  calling  a  convention ; 8  and  it  affords  a  striking  illustration  of 
the  reflex  influence  of  a  daughter  state  upon  the  mother  and  a  rever- 
sal of  the  usual  process. 

In  1867  and  1873  new  instruments  were  framed  and  submitted  to 
the  people  of  Michigan,9  but  failed  to  receive  their  assent;  and  they 

1  Art.  XIII,  sec.  i ;  Poore,  I,  991. 

2  The  only  change  was  the  substitution  of  "House  of  Representatives"  for  "As- 
sembly." 8  Art.  XIII,  sec.  2;  Poore,  I,  991. 

4  "Adoption  and  Amendment  of  Constitutions,"  162. 

6  6299  to  1350.     See  Jameson,  652.  6  Congressional  Globe,  II,  19. 

7  Art.  XX,  sec.  i ;  Poore,  I,  1012.     This  had  also  been  incorporated  into  the  New 
York  constitution  of  1846,  Art.  XIV,  sec.  2.     See  Poore,  II,  1366. 

8  Art.  XX,  sec.  2. 

8  Jameson,  "Constitutional  Conventions,"  653;  American  Pol.  Sc.  Rev.  II,  444. 


RATIFICATION   IN   THE   OLD   NORTHWEST   TERRITORY       263 

continued  for  more  than  a  half  century  under  their  second  constitu- 
tion, meanwhile  proving  their  adherence  to  the  state's  early  tradi- 
tions by  ratifying  numerous  amendments,1  as  occasion  has  required. 
In  the  autumn  of  1907  a  constitutional  convention2  assembled 
at  Lansing  and  its  debates  gave  promise  of  a  still  greater  advance 
toward  popular  law-making.  Among  its  early  proposals  was  one 3 
to  incorporate  the  initiative  and  referendum  in  ordinary  legislation. 
This  was  not  adopted,  but  the  instrument  framed  by  the  convention 
did  provide 4  an  elaborate  method  of  constitutional  amendment  upon 
petition  of  twenty  per  cent  of  the  electors  whose  signatures  must  be 
inscribed  "at  a  regular  registration  or  election  under  the  supervision 
of  the  officials  thereof."  But  this  method  is  not  applicable  to  the 
article  which  embodies  it,  and  is,  moreover,  subject  to  disapproval 
by  the  legislature.  The  new  constitution  was  ratified  in  1908.  • 

F.     Wisconsin 

In  this,  the  last  of  the  states  formed  from  the  Northwest  Territory, 
the  tendency  was  stronger  from  the  beginning  than  in  any  other 
state  in  this  group  to  consult  the  people.  At  the  second  session  of 
the  territorial  legislature  which  convened  at  Madison,  in  1838,  Gov- 
ernor Dodge  recommended  that  steps  be  taken  to  get  the  sense  of 
the  people  on  the  question  of  establishing  a  state  government.5  No 
result  having  been  obtained,  the  proposal  was  renewed  the  following 
session,  and  again  at  the  next,  and  at  this  latter  session  (1840-1841) 
a  plebiscite  was  authorized.  The  result  was  overwhelmingly  against 
statehood,6  and  two  subsequent  submissions  of  the  question  met  a 
similar  fate.7  After  unsuccessful  attempts  in  1844  and  1845  to  re- 
submit  the  question,  such  a  measure  was  finally  passed  in  January, 
i846.8  It  provided  that  in  case  the  vote  was  favorable  to  statehood, 
a  constitutional  convention  should  be  chosen,  and  further  — 

"Said  convention  shall  have  power  to  submit  the  constitution  adopted  by 
them  to  a  vote  of  the  people,  if  they  shall  deem  proper;  and  to  provide  how  the 
votes  cast  upon  that  subject  shall  be  taken,  canvassed  and  returned,  and  shall 
also  have  power  to  submit  the  said  constitution  to  the  Congress  of  the  United 

1  See  Poore,  I,  1016,  1019.  a  See  American  Pol.  Sci.  Rev.  II,  443. 

3  By  Delegate  Ingram.  «  Art.  XVII. 

6  Tenny  and  Atwood,  "  Fathers  of  Wisconsin,"  18.  8  499  to  92.     Id.  19. 

7  In  1843  the  vote  was  1821  to  619,  and  in  1844  it  was  1276  to  541.     Id. 

8  Wisconsin  Laws,  1846,  5. 


264  THE   PEOPLE'S   LAW 

States  and  to  apply  for  the  admission  of  Wisconsin  into  the  Union  of  the  United 
States  as  a  sovereign  state:  Provided,  that  said  constitution  shall  be  eventually 
ratified  by  the  people  either  before  or  after  the  action  of  Congress  upon  the  same." l 

Thus  Wisconsin  alone,  of  all  the  states  in  the  Northwest  Terri- 
tory, began  by  requiring  that  its  first  constitution  be  "  ratified  by  the 
people."  This  time  the  proposals  of  the  act  received  the  popular 
assent  and  the  election  of  delegates  followed.  The  convention  which 
met  at  Madison,  in  October,  1846,  had  a  membership  "of  great,  if 
not  extraordinary,  intellectual  ability." 2  More  than  one-fifth  were 
lawyers,  including  the  distinguished  Edward  G.  Ryan,  afterward 
Chief  Justice  of  the  Supreme  Court,  and  others  prominent  in  the  later 
political  and  judicial  history  of  the  state.3  Of  the  one  hundred  and 
twenty-four  members,  all  but  twelve  were  native  Americans,  more  than 
one-third  from  New  York,  and  almost  an  additional  one-third  from 
New  England.4  These  figures  throw  not  a  little  light  on  the  sources 
of  the  instrument  which  the  delegates  evolved.  When  the  Madison 
convention  assembled,  the  fourth  constitutional  convention  of  New 
York  was  just  closing  its  labors,5  and  there  is  reason  to  believe  that 
its  work  was  closely  studied  by  the  Wisconsin  delegates,  of  whom 
so  large  a  proportion  hailed  from  the  Empire  State.  The  article 
on  amendment  and  revision,6  e.g.  not  only  required  ratification  of 
the  newly  framed  instrument  itself,7  but  incorporated  the  feature 
of  periodical  resubmission  of  convention  proposals  which  New 
York  had  just  borrowed  from  New  Hampshire,  and  which  Indiana 
and  Iowa  had  previously  adopted.  But  in  providing  for  separate 
amendments  the  Wisconsin  convention  adopted  substantially  the 
simplified  and  popular  system  which  Maine  had  formulated  a  quarter 
of  a  century  before,8  dispensing  with  the  second  appeal  to  the  legis- 
lature and  authorizing  the  submission  of  amendments  by  a  two- 
thirds  vote  at  one  session.9 

The  Wisconsin  instrument  of  1846  was  a  notable  one,10  in  several 

1  Wisconsin  Laws,  1846,  n,  sec.  22. 

2  Tenny  and  Atwood,  "Fathers  of  Wisconsin,"  19.  3  Id.  24. 

4  Id.  20.  6  It  adjourned  four  days  after  the  Wisconsin  body  convened. 

8  Art.  XVIII;   Tenny  and  Atwood,  324,  325.  7  Art.  XIX,  sec.  9. 

8  See  ante,  "  Maine,"  Chap.  XIII.  8  Id. 

10  Its  text  is  printed  in  Tenny  and  Atwood' s  "Fathers  of  Wisconsin,"  303  et  seq., 
and  the  authors  remark  that  it  "was  not  included  in  the  journal  of  the  convention 
nor  published,  except  in  pamphlet  form,  and  is  now  (1880)  out  of  print  and  rarely  to 
be  found  even  in  public  libraries." 


RATIFICATION   IN   THE   OLD   NORTHWEST  TERRITORY      265 

particulars,  but  some  of  its  provisions  l  were  objectionable  to  the 
voters  of  that  day,  and  among  these  was  the  clause  providing  for 
periodical  resubmission,  which  was  deemed  cumbrous  and  expen- 
sive.2 After  "an  exciting  contest,"3  the  vote  of  the  people  was 
taken  on  April  6,  1847,  and  the  proposed  constitution  rejected  by 
a  vote  of  20,232  to  14,1  ig.4  A  separately  submitted  clause  confer- 
ring the  right  of  suffrage  upon  negroes  received  but  7564  votes  as 
against  I4,6i5.5 

But  the  rejection  of  the  work  of  this  first  convention  did  not  stay 
the  movement  for  statehood  nor  prevent  a  new  appeal  to  the  people. 
Within  a  few  months  an  extra  session  of  the  legislature  was  called 
and  provision  made  for  another  convention,  which,  after  the  election 
of  delegates,  met  at  Madison  on  December  15,  1847.  ^  was  a  smaller 
body  and,  supposedly,  more  conservative  though  not  less  distin- 
guished in  personnel  than  its  predecessor.  Its  work  was  largely 
a  reproduction  of  the  first  instrument,  but  the  clauses  which  had 
excited  opposition  were  omitted  or  evaded,  and  the  provisions  for 
amendment  and  revision  were  less  advanced  and  simple.  Not  only 
did  the  new  draft  exclude  the  periodical  resubmission  feature  and 
provide  for  submitting  the  question  of  calling  a  convention  only 
when  the  legislature  should  deem  it  necessary,6  but  it  also  abandoned 
the  plan  of  submitting  amendments  by  one  legislature  and  restored 
the  New  York  system  of  requiring  a  majority  vote  of  two  successive 
legislatures.7  But  other  clauses  indicated  that  the  convention  was 
not  desirous  of  curtailing  the  share  of  the  people  in  legislation,  for 
some  of  the  questions  which  had  troubled  the  first  convention  were 
disposed  of  by  providing  for  a  genuine  referendum.  The  rejected 
instrument  had,  e.g.,  absolutely  prohibited  banks  of  issue  and  in- 
curred on  that  account  great  hostility  among  the  commercial  classes 
in  the  eastern  portion  of  the  territory.8  The  second  convention,  wish- 
ing to  conciliate  this  element  and  at  the  same  time  avoid  alienating 
the  settlers  of  the  interior  and  western  portions  who  were  opposed 
to  banks  of  issue,  decided  to  leave  the  whole  question  to  future  plebi- 
scites, authorized  the  legislature  to  submit  at  any  general  election  a 

1  Among  others  were  the  large  size  of  the  legislature,  the  limiting  of  salaries,  pro- 
vision as  to  exemptions,  rights  of  married  women,  etc.     Tenny  and  Atwood,  "  Fathers 
of  Wisconsin,"  386-388. 

2  Id.  388.  »  Id.  19.  4  Id.  367.  »  Id.  331. 

8  Art.  XII,  sec.  2 ;  Poore,  II,  2040.  7  Art.  XII,  sec.  i ;   Poore,  II,  2040. 

8  Tenny  and  Atwood,  "  Fathers  of  Wisconsin,"  387,  388,  note. 


266  THE   PEOPLE'S    LAW 

proposal  to  charter  banks,  and  prohibited  all  legislation  on  the  subject 
unless  it  should  receive  the  specific  assent  of  the  electors.1  The 
question  of  extending  the  franchise  to  the  negro  was  similarly  dis- 
posed of.  The  convention  did  not  provide  for  extension,  directly, 
either  in  its  main  instrument  or  in  a  separate  article,  but  it  authorized 
such  extension  at  any  time  through  legislative  enactment  ratified 
by  the  voters  at  a  general  election.2  It  would  almost  seem  as  if  the 
framers  had  been  studying  the  "Frankland  Constitution"3  of  1784 
or  the  referendum  of  colonial  New  England. 

With  hostility  thus  allayed  and  opposition  disarmed,  the  new 
instrument  went  to  the  people,  and  on  March  13,  1848,  it  received 
their  assent  by  a  majority  larger  than  that  by  which  its  predecessor 
had  been  rejected.4  It  thus  became  the  first  and,  as  yet,  the  only 
constitution  of  Wisconsin.  As  in  Massachusetts  and  Maine,  the 
original  instrument,  finally  adopted  after  many  unsuccessful  attempts, 
has  been  retained  to  the  present  hour,  and  events  have  proved  there 
as  elsewhere  that  the  most  enduring  form  of  an  organic  law  is  that 
which  is  builded  on  popular  sovereignty  and  sealed  with  popular 
approval. 

But  although  no  third  constitutional  convention  has  been  called 
in  Wisconsin  and  the  original  instrument  remains,  with  few  substan- 
tial changes,  popular  participation  in  law-making  has  continued 
throughout  the  state's  later  history.  In  1849,  the  year  following  the 
adoption  of  the  constitution,  the  legislature  exercised  its  privilege 
of  submitting  to  the  voters  for  their  approval  a  proposed  enactment, 
granting  the  franchise  to  the  negro,5  which  received  nearly  one-third 
more  votes  than  were  cast  against  it.6  Beginning  with  1876,  various 
amendments  7  to  the  constitution  have  been  submitted  and  ratified, 
none  of  them  radical  or  fundamental,  but  such  merely  as  were  sug- 
gested by  new  conditions  and  added  experience,  and  at  the  1903  ses- 
sion of  the  legislature  the  question  of  establishing  by  law  the  direct 
primary,  long  a  subject  of  contention  in  Wisconsin  politics,  was  dis- 
posed of  precisely  as  such  questions  had  been  dealt  with  by  the  second 
constitutional  convention,  viz.  referring  it  to  a  vote  of  the  people.8 

1  Art.  XI,  sec.  5;  Poore,  II,  2040.  6  Wisconsin  Laws,  1849,  Chap.  137. 

2  Art.  Ill,  sec.  i ;   Poore,  II,  2030.  6  Gillespie  v.  Palmer,  20  Wis.  572. 

3  See  ante,  Chap.  VIII.  7  Seven  of  these  had  been  adopted 

4  The  vote  was  16,799  to  6384;  Tenny  up  to  1877. 

and  Atwood,  367.  8  Wisconsin  Laws,  1903,  Chap.  451. 


RATIFICATION    IN    THE   OLD    NORTHWEST   TERRITORY       267 

Truly,  the  civic  lessons  of  pioneer  days  were  well  learned  in  the  Badger 
state.  No  commonwealth  has  been  more  steadfast  in  its  policy 
of  consulting  the  people,  and  none  has  more  reason  to  be  proud  of 
the  system  of  laws  and  institutions  which  that  policy  has  fostered. 

Thus,  by  the  middle  of  the  nineteenth  century,  popular  ratifi- 
cation had  become  established  in  all  of  the  states  of  the  Northwest 
Territory.  New  Englander  and  Southron,  mingling  and  colliding, 
had  produced  a  method  of  constitution-making,  in  part  original  and 
differing  in  some  respects  from  either  parent  system,  ever  more 
democratic  in  tendency,  and  destined  to  furnish  models  for  the  fun- 
damental codes  of  great  states  yet  to  be  formed  from  the  wilderness 
beyond. 


CHAPTER  XVII 
POPULAR  RATIFICATION  IN  THE  LOUISIANA  PURCHASE 

A .   Louisiana 

THE  region  known  as  the  Louisiana  Purchase  includes  a  number 
of  commonwealths,  having  a  great  variety  of  soil  and  climate,  as 
well  as  of  population.  But  all  of  these  have  a  common  origin  as 
regards  their  subjection  to  American  sovereignty,  and  the  connection 
of  their  constitutional  and  legal  history  has  been  closer  than  is  com- 
monly supposed.  The  first  state  to  be  formed  from  this  region  was 
Louisiana.  Its  government  had  always  been  autocratic,  and  there 
was  little,  if  any,  improvement  in  this  regard  upon  its  acquisition  by 
the  United  States.  Indeed,  so  extreme  was  the  power  vested  in  the 
governor  and  council,  appointed  by  the  American  President,  that  a 
meeting  of  the  inhabitants  was  held  soon  after  the  session  to  agitate 
for  a  modification,  and  a  committee  was  sent  to  Washington  to  inter- 
cede with  Congress  to  this  end.1  Although  repeated  efforts  for  state- 
hood were  made,  it  was  not  until  1811  that  Congress  could  be  induced 
to  pass  an  enabling  act,  and  this  measure,  when  finally  adopted,  was 
like  others  of  that  period  in  leaving  it  to  a  convention  "to  form  a  con- 
stitution and  state  government  for  the  people."  2  Delegates  elected 
to  such  a  convention  assembled  at  New  Orleans  on  November  4, 
1811.  The  first  question  before  it  was  the  expediency  of  forming 
a  state  government  at  all,  and  this  was  the  occasion  of  some  debate, 
although  the  majority  in  favor  of  such  a  course  was  large.3  In  framing 
a  constitution  it  was  natural  that  this  body  should  take  as  its  model 
the  latest  instrument  which  had  been  framed  in  that  section  of  the 
country,  and  which,  in  this  instance,  happened  to  be  the  second  con- 

1  Martin,  "History  of  Louisiana,"  325. 

2  Enabling  Act,  sec.  3;  Poore,  "Charters  and  Constitutions,"  I,  699. 
8  Gayarre,  "History  of  Louisiana,"  IV,  272. 

268 


POPULAR   RATIFICATION   IN   THE   LOUISIANA   PURCHASE     269 

stitution  of  Kentucky,1  which,  as  we  have  seen,  had  been  adopted  in 
1799.  Imitation  of  this  instrument  is  particularly  noticeable  in  the 
amendment  clause,  which  was  taken  directly  therefrom.2  This  first 
Louisiana  constitution  was  not  a  democratic  document.  It  imposed 
a  property  qualification  both  for  the  franchise  and  for  office  holding, 
and  empowered  the  governor  to  appoint  not  only  judges  but  local 
ministerial  officers.3  It  was,  of  course,  proclaimed  without  submis- 
sion as  the  enabling  act  intended  it  should  be,  though  it  is  not  likely 
that  the  action  in  this  regard  would  have  been  different  without  such 
a  requirement  at  that  period  and  in  a  community  where  so  large  a 
part  of  the  population  was  of  Latin  origin  and  so  little  accustomed 
to  direct  participation  in  the  affairs  of  government.  It  was  some- 
thing that  the  first  constitution  of  such  a  community  should  have 
provided  for  consulting  the  people  with  reference  to  the  calling  of  a 
convention. 

Almost  a  generation  elapsed  before  the  movement  was  started 
which  displaced  this  constitution,  proclaimed  in  1812.  But  in  1843 
the  legislature  passed  an  act  providing  for  a  convention  "for  the 
purpose  of  readopting,  amending  or  changing  the  constitution  of 
the  state."  4  The  democratic  movement  had  by  this  time  reached 
Louisiana,5  as  was  evident  in  the  work  of  the  body  which  met  in 
pursuance  of  this  act.  It  abolished  the  property  qualification  for 
the  franchise  and  for  office  holding  and  increased  the  number  of 
elective  offices.6  But  in  submitting  amendments  it  required  the  con- 
currence of  three-fifths  of  the  members  of  the  first  legislature  instead 
of  a  simple  majority,  as  in  the  preceding  instrument.7  The  most 
significant  feature  of  this  constitution,  however,  was  its  express 
requirement  of  submission 8  notwithstanding  the  constituent  act 
would,  as  we  have  seen,  have  authorized  it  to  be  proclaimed.  It 
shows  that  the  people  of  Louisiana  had  meanwhile  been  learning 
from  the  southern  states  to  the  east  of  them. 

1  "Those  who  prepared  the  first  form  of  a  constitution  submitted  to  the  conven- 
tion took  the  constitution  of  Kentucky  for  a  model."  — Martin,  "History  of  Louisi- 
ana," 354. 

2  Art.  VII;  Poore,  "Charters  and  Constitutions,"  I,  707. 

3  Arts.  II,  III;  Poore,  I,  701,  703.       4  Louisiana  Acts,  1843  (New  Orleans,  1843),  31. 
5  Gayarre,  "History  of  Louisiana,"  668.  *  Art.  X,  83. 

7  Title  VIII;    Poore,  "Charters  and  Constitutions,"  I,  723.     This  clause  intro- 
duced the  requirement  of  publication  of  the  proposed  amendment  in  French  and  Eng- 
lish. 

8  Arts.  150-152;    Poore,  "Charters  and  Constitutions,"  I,  724,  725. 


2/0  THE   PEOPLE'S   LAW 

The  second  constitution  was  ratified  in  November,  1845,  but  it 
was  not  long  in  force.  It  was  displaced  in  1852  by  another,  likewise 
ratified,  which  modernized  the  amendment  clause  by  dispensing 
with  the  second  legislative  approval.1  The  ordinance  of  secession 
was  not  submitted,  but  a  new  constitution,  framed  in  1864  under  the 
auspices  of  the  military  government,  authorized  amendments  to  be 
submitted  by  a  simple  majority  of  one  legislature,2  and  was  itself 
ratified  by  a  small  fraction  of  the  voters,3  but  was  not  recognized 
by  the  Federal  government.  The  reconstruction  instrument  of 
1868 4  was  ratified  by  the  people,  as  was  also  the  one  which  displaced 
it  in  1879,  and  Louisiana  continued  under  a  popular  constitution 
until  almost  the  close  of  the  nineteenth  century,  when,  as  we  shall 
later  see,  it  joined  the  reactionary  movement  and  proclaimed  a 
constitution. 

B.   Missouri 

The  enabling  act  for  Missouri  was  almost  precisely  like  the  one 
passed  for  Louisiana  in  precluding  the  submission  of  the  state's  con- 
stitution.5 The  convention  authorized  by  it  and  which  met  at  St. 
Louis  in  1820  could  not  have  been  expected  to  submit  its  work  to 
the  voters.6  But  the  terms  of  the  enabling  act  hardly  justified  the 
convention  in  failing  to  provide  any  system  of  popular  ratification 
by  amendments  and  in  adopting  the  mode  of  alteration  by  the  legis- 
lature only,7  especially  since  Louisiana,  a  decade  before,  and  Kentucky, 
a  generation  earlier,  had  each  furnished  a  better  model.  The  example 
of  Louisiana  seems  to  have  been  more  effective  a  score  of  years  later, 
for  it  was  in  the  same  year  that  the  latter  state  took  steps  to  inaugu- 
rate a  new  constitution  that  the  legislature  of  Missouri  passed  an 
act  "for  taking  the  sense  of  the  people  .  .  .  upon  the  expediency 

1  Title  IX;  Poore,  II,  737.       2  Title  XII;  Poore,  I,  753.       3  6836  against  1566. 
4  This  restored  the  two-thirds  requirement  for  submitting  amendments.     Title  IX ; 
Poore,  I,  769. 

6  Missouri  Enabling  Act,  sec.  4;   Poore,  II,  1103. 

6  "The  constitution,  as  adopted,  was  not  submitted  to  a  vote  of  the  people  for 
ratification,  but  took  effect  of  its  own  motion."  —  Carr,  "Missouri"   (American  Com- 
monwealths, Boston  and  New  York,  1888),  151.     Cf.  Jameson,  "Constitutional  Con- 
ventions," 652;   Oberholtzer,  "The  Referendum  in  America,'  112,  note.     Mr.  Poore 
("Charters  and  Constitutions,"  1104,  note)  is  evidently  in  error  in  saying  that  it  was 
submitted. 

7  Art.  XII;   Poore,  II,  1114. 


POPULAR   RATIFICATION   IN   THE   LOUISIANA  PURCHASE    271 

of  calling  a  convention  to  amend,  alter  or  make  a  new  constitution." * 
This  act  further  provided  for  a  popular  vote  on  the  instrument  to  be 
framed,  and  required  the  governor  to  submit  this  vote  to  the  legisla- 
ture, which  was  directed  to  declare  the  instrument  in  force  if  it  should 
appear  to  have  received  "a  majority  of  all  the  votes  given."  2  The 
work  of  the  convention  thus  provided  for  was  submitted  to  the  people 
and  rejected.3  But  in  1861  a  convention  assembled  which  framed 
certain  amendments  to  the  constitution  of  1820,  and  submitted  them 
to  the  people.4  An  entire  new  constitution  was  ratified  by  the  electors 
in  1865.  It  provided  for  amendments  to  be  submitted  by  a  majority 
of  one  legislature,  and  for  the  calling  of  a  convention  upon  a  proposal 
similarly  submitted  and  ratified  by  a  majority  of  those  voting  thereon.5 
The  convention  which  framed  this  instrument  was  in  control  of 
the  Union  party,  and  it  assumed  the  power  to  limit  the  electorate  to 
which  its  work  should  be  submitted  to  those  who  could  take  the  oath 
of  loyalty  to  the  Federal  government.6  This,  of  course,  was  mere 
legislation  on  the  part  of  the  convention,  but  the  power  to  enact  it 
was  afterwards  confirmed  by  the  Supreme  Court  in  a  prosecution  for 
taking  a  false  oath  in  order  to  vote  at  this  election.7  This  ruling  ap- 
pears to  be  in  conflict  with  that  made  by  the  Supreme  Court  of  Penn- 
sylvania a  few  years  later,8  and  it  was  the  occasion  for  the  announce- 
ment, probably  for  the  last  time  in  Missouri,  of  the  "representation" 
theory,  which  was  expressed  in  these  words : 

"  The  convention  might  (if  it  had  been  deemed  proper  to  do  so)  have  declared 
the  constitution  framed  by  it  in  full  force  and  effect  without  making  provision  for 
its  submission  to  the  voters  of  the  State." fl 

The  present  constitution  of  Missouri,  framed  in  1875,  was  ratified 
by  the  people  and  retains  the  modern  amendment  feature  of  its 
predecessor.10 

1  Missouri  Laws,  1843  (Jefferson  City,  1843),  2^,  sec.  i. 

2  Id.  28,  sec.  15. 

3  Jameson,  "Constitutional  Conventions,"  652. 

4  Poore,  II,  1123,  1124.     But  this  action  was  revoked.     Id.  1130. 

5  Art.  XII;  Poore,  II,  1155. 

8  Art.  XIII,  sec.  6;  Poore,  "Charters  and  Constitutions,"  II,  1156. 

7  State  v.  Neal,  42  Mo.  119. 

8  Wells  v.  Bain,  75  Pa.  St.  39 ;  Wood's  Appeal,  75  Pa.  St.  59. 

9  State  v.  Neal,  42  Mo.  123.     "This  was  obiter"  says  Judge  Cooley,  in  his  "Con- 
stitutional Limitations"  (5th  Ed.),  42. 

10  Art.  XV;  Poore,  II,  1195.      The  vote  on  ratification  was  90,600  as  against 
14,362. 


2/2  THE   PEOPLE'S   LAW 


C.    Arkansas 

The  third  state  admitted  from  the  Louisiana  Purchase  was  Arkan- 
sas. Like  its  two  predecessors,  it  entered  the  Union  with  a  constitu- 
tion which  had  not  been  submitted  to  the  people.  Not  only  was 
this  the  last  permanent  state  constitution  to  be  so  adopted,  prior  to 
the  reconstruction  era,  but,  apparently  following  the  example  of  her 
northern  neighbor,  Arkansas  even  retained  the  eighteenth-century 
method  of  amendment  by  the  legislature.1 

The  events  immediately  preceding  the  Civil  War  seem  to  have 
produced  something  of  a  change  of  method.  On  January  16,  1861, 
the  legislature  submitted  to  the  people  the  question  of  calling  a  con- 
vention to  consider  the  issue  of  separating  from  the  Union.  The 
proposal  was  approved,  though  the  vote  in  its  favor  was  no  more 
than  a  bare  majority  of  those  participating  in  the  presidential  election 
held  in  the  state  a  few  months  previously.  The  convention  passed 
an  ordinance  providing  for  a  vote  of  the  people  in  the  ensuing  August 
on  the  question  whether  they  desired  secession  or  " cooperation" 
with  the  existing  Union.  Some  three  months  before  this  date  arrived, 
however,  the  convention  took  the  matter  into  its  own  hands  and 
enacted  a  secession  ordinance.2 

During  the  last  year  of  the  war  a  new  constitution  was  framed  and 
submitted  to  the  electors  of  Arkansas,  but  it  retained,  strangely  enough, 
the  plan  of  legislative  amendment.3  In  1868,  however,  another  in- 
strument similarly  submitted  and  ratified  in  order  to  meet  the  require- 
ments of  the  reconstruction  acts,  embodied  the  Pennsylvania  plan 
of  referring  amendments  by  a  majority  vote  of  two  successive  legis- 
latures.4 The  present  constitution,  framed  and  submitted  in  1874, 
dispenses  with  the  approval  of  the  second  legislature.5  The  people 
of  the  state  have  recently  been  employing  the  direct  primary,  particu- 
larly in  the  nomination  of  United  States  senators,  and,  despite  the 
anomalies  of  its  early  history,  the  principle  of  popular  participation 
seems  now  to  be  firmly  established  in  the  commonwealth. 

1  Ark.  Constitution,  1836,  Art.  IV,  sec.  35;  Poore,  "Charters  and  Constitutions," 
I,  108. 

2  Tenney,  "Military  and  Naval  History  of  the  Rebellion,"  40,  41. 

3  Ark.  Const.,  1864,  Art.  IV,  sec.  32 ;  Poore,  1, 126. 

4  Ark.  Const.,  1868,  Art.  XIII;  Poore,  I,  149. 

8  Ark.  Const.,  1874,  Art.  XIX,  sec.  22;  Poore,  I,  180. 


POPULAR   RATIFICATION   IN   THE   LOUISIANA   PURCHASE    273 


D.   Iowa 

The  first  state  carved  out  of  the  Louisiana  purchase  in  which 
the  people  were  directly  consulted  regarding  their  fundamental  laws 
was  Iowa.  The  reasons  for  this  are  apparent  when  we  examine 
the  state's  institutional  beginnings,  which  resemble  strongly  those  of 
the  communities  of  the  South  whence  came  the  popular  constitution 
of  that  region.1  The  first  attempt  at  organized  government  and  law- 
making  within  the  limits  of  the  present  state  of  Iowa  seems  to  have 
been  made  by  the  lead-miners  in  the  vicinity  of  Dubuque  in  1830. 
These  men  were  mostly  from  Illinois,  and  the  mines  which  they  de- 
sired to  work  were  situated  on  Indian  land  belonging  to  the  Sac  and 
Fox  tribe  whose  rights  the  United  States  government  was  protecting 
with  military  force.2  But  looking  forward  to  the  time  when  this  land 
should  be  thrown  open  to  settlement,  and  being  without  the  pale  of 
civil  authority,  either  state  or  federal,  they  repeated  the  experiment, 
so  often  witnessed  in  our  history,  of  improvising  political  institutions 
fitted  to  their  needs.  "Assembled  around  an  old  cotton-wood  log, 
stranded  on  an  island,"  3  they  held  a  folkmoot,  and  adopted  the  follow- 
ing code  of  laws  which  a  committee  appointed  by  them  had  framed, 
and  which,  though  brief,  met  the  conditions  which  were  then  most 
important  to  them :  — 

"We,  a  committee,  having  been  chosen  to  draft  certain  rules  and  regulations 
by  which  we,  as  miners,  will  be  governed,  and,  having  duly  considered  the  sub- 
ject, do  unanimously  agree  that  we  will  be  governed  by  the  regulations  on  the 
east  side  of  the  Mississippi  river,  with  the  following  exceptions,  to  wit: 

"Article  i.  That  each  and  every  man  shall  hold  two  hundred  square  yards 
of  ground,  working  said  ground  one  day  in  six. 

"Article  2.  We  further  agree  that  there  shall  be  chosen,  by  a  majority  of 
the  miners  present,  a  person  who  shall  hold  this  article  and  grant  letters  of  arbi- 
tration on  application  having  been  made,  and  that  said  letters  of  arbitration  shall 
be  obligatory  on  the  parties  concerned  so  applying. "  4 

"The  conditions  which  led  to  its  (the  claim  association's)  organization  among 
the  early  settlers  in  Iowa,  are  in  general  the  same  as  those  which  have  given  rise  to 
like  organizations  from  the  days  of  the  self-governing  commonwealths  of  Watauga, 
Cumberland,  and  Transylvania  down  to  the  settlement  of  Oklahoma."  —  Shambaugh, 
"Constitutions  and  Records  of  the  Claim  Association  of  Johnson  County,  Iowa" 
(Iowa  City,  1894),  Introduction,  xii. 

2  Macy,  "  Institutional  Beginnings  in  a  Western  State,"  Johns  Hopkins  University 
Studies,  II,  348. 

3  Id.  *  Id. 


2/4  THE  PEOPLE'S   LAW 

The  Claim  Associations 

The  next  efforts  at  constitution-making  were  those  of  the  claim 
associations,  of  which  that  of  Johnson  County  seems  to  have  been 
the  most  successful.1  An  act  of  the  territorial  legislature  had  located 
the  capital  at  Iowa  City,  the  county  seat  of  this  county,  and  the  sudden 
influx  of  immigrants  due  to  this  fact,  as  well  as  the  unreliable  condi- 
tion of  the  land  laws,  made  it  imperative  that  the  settlers  and  "  squat- 
ters "  already  on  the  ground  should  organize  for  self -protection.2 
Several  meetings  for  this  purpose  were  held  early  in  1839,  and  on 
March  9  of  that  year,  the  assembled  settlers  adopted  their  constitu- 
tion and  laws  for  the  government  of  the  citizens  of  Johnson  County 
in  making  and  holding  claims.  This  instrument  has  been  pronounced 3 
"an  exceptionally  perfect  one"  among  its  class.  It  was,  of  course, 
mainly  devoted  to  the  prime  purpose  of  protecting  the  settlers'  claims, 
and  it  contained  elaborate  provisions  for  the  maintenance  and  pro- 
cedure of  land  courts,  the  adjustment  of  boundary  disputes,  and  the 
prevention  of  "claim  jumping."  But  its  chief  interest  for  us  lies 
in  its  popular  character.  The  meeting  which  adopted  it  is  said  to 
have  included  "  nearly  every  settler  in  the  county 4  and  these  all 
signed  5  the  document  reciting  therein  that  "  for  the  faithful  obser- 
vance and  mantanance  [sic]  of  all  the  foregoing  laws  we  mutually 
pledge  our  honours  and  subscribe  our  names  hereunto."  6  Future 
membership  in  the  association  was  provided  for  as  follows : 7  — 

"Any  male,  white  person  over  the  age  of  eighteen  can  become  a  member  of 
this  association  by  signing  the  laws,  rules  and  regulations  governing  the  association. 
No  member  of  the  association  shall  have  the  privalege  of  voting  on  a  question  to 
change  any  article  of  the  constitution  or  laws  of  the  association  unless  he  is  a  resi- 
dent citizen  of  the  county  and  a  claimholder." 

Future  constitutional  changes  were  thus  regulated :  — 

"Any  law  or  article  of  the  constitution  of  this  association  may  be  altered  at 
the  semi-annual  meetings  and  at  no  other  meetings  provided  however,  that  three 
fifths  of  the  members  presant  who  are  resident  citizens  of  the  county  and  actual 

1  Shambaugh,   "Constitution    and  Records  of    Claim  Association  of    Johnson 
County,"  xiv. 

2  Id.  xiv,  xviii.  s  Id.  3,  where  it  is  printed  in  full.  4  Id.  xiv. 

8  The  list  of  signatures  fills  about  four  printed  pages  of  two  columns  each,  though 
this  may  have  included  those  who  signed  after  adoption. 

•  Shambaugh,  "  Constitution  and  Records  of  Claim  Association  of  Johnson 
County,"  12.  7  Id.  9. 


POPULAR  RATIFICATION   IN   THE   LOUISIANA  PURCHASE     275 

claim  holders  shall  be  in  favour  of  such  change  or  amendment,  except  that  section 
fixing  the  quantity  of  land  that  every  member  is  entitled  to  hold  by  claim  and  that 
section  shall  remain  unaltered" * 

Here,  then,  in  the  very  political  beginnings  of  Iowa  we  find  the 
principle  of  popular  assent  and  participation  recognized  throughout. 

Constitution-making 

Early  in  the  legislative  history  of  the  new  commonwealth,  these 
pioneer  experiments  in  popular  law-making  bore  fruit.  The  result 
was  doubtless  hastened  by  the  corresponding  movement  in  Wisconsin, 
of  which,  for  a  time,  Iowa  formed  a  part.  At  the  session  of  the  legis- 
lature, held  in  1840,  an  act  was  passed  "to  provide  for  the  expression 
of  the  opinion  of  the  people  of  the  territory  of  Iowa  as  to  taking  pre- 
paratory steps  for  their  admission  into  the  Union."  2  It  provided 
for  opening  a  poll  in  every  electoral  precinct  of  the  territory  3  and  for 
receiving  ballots  from  all  qualified  voters  for  territorial  delegates, 
labelled  "convention"  or  "no  convention."  4  The  result  of  this  vote, 
which  was  taken  in  August,  1840,  was  the  rejection  of  the  proposal 
by  a  majority  of  more  than  three  to  one.5  The  settlers  feared  increased 
burdens  of  taxation  as  a  result  of  statehood,6  and  though  there  was 
some  disappointment  over  the  result,  the  people  were  recognized 
as  the  proper  and  final  arbiters,  and  their  decision  was  accepted.7 
In  1842,  the  statehood  project  was  revived  in  the  legislature.  This 
time  the  act 8  provided  not  only  for  taking  the  sense  of  the  voters,  but 
also  for  a  convention  in  case  the  proposal  should  be  adopted,  and 
further  established  the  practice  of  consulting  the  people  by  the  fol- 
lowing clause : 9  — 

"That  when  a  constitution  and  form  of  state  government  shall  have  been 
adopted  by  said  convention  they  shall  cause  the  same  to  be  published  in  all  the 
newspapers  in  this  territory  and  at  the  next  general  election  for  members  of  the 

1  Shambaugh,  Id.  9.  2  Iowa  Laws,  1840  (Burlington,  1840),  Chap.  XXXIII. 

3  Id.  sec.  i.  4  Id.  sees.  2,  3. 

6  The  exact  figures  were  2907  to  937.     Iowa  Standard,  I,  No.  6,  reprinted  in  Sham- 
baugh, "Documentary  Material  relating  to  the  History  of  Iowa"  (Iowa  City,  1897), 
I,  137-  fl  Shambaugh,  Id.  133. 

7  "The  sentiments  of  the  people  of  the  territory  thus  indicated  will  necessarily 
preclude  all  further  legislation  on  the  subject  at  the  present  session.     The  people  have 
by  their  votes  expressed  their  preference  for  a  territorial  government  for  the  time  being." 
Governor's  message  to  ensuing  Legislature,  House  Journal  113.     Reprinted  in  Sham- 
baugh, Id.  136.  8  Iowa  Laws,  1842,  Chap.  LXXXIV,  70.  9  Id.  sec.  8,  p.  70. 


276  THE   PEOPLE'S   LAW 

council  and  House  of  Representatives  after  the  formation  of  a  constitution  and 
state  government  by  said  convention,  the  electors  of  said  territory,  who  are  qualified 
to  vote  for  members  of  the  legislature  at  said  general  election  shall  be,  and  they 
are  hereby  authorized  to  vote  '  for  the  constitution'  or  '  against  the  constitution.'  " 

But  this  appeal  to  the  people  was  likewise  unsuccessful,  and  while 
the  proportion  was  not  so  pronounced  as  at  the  former  submission, 
each  of  the  seventeen  counties  returned  a  majority  against  the  pro- 
posal.1 

In  1844  a  third  proposal  was  submitted  by  an  act2  which,  like  the 
preceding,  provided  for  a  convention  which  should  refer  its  work  to  the 
electors,  who  were  not  required  to  be  residents  of  the  county  in  which 
they  voted.3  This  proposal  was  approved  by  a  substantial  majority,4 
in  April,  1844,  and  the  convention  thus  provided  for  met  at  Iowa 
City  in  the  following  October. 

In  the  deliberations  of  this  body 5  little  attention  seems  to  have  been 
paid  to  the  question  of  submission.  That  was  settled  by  the  con- 
stituent act  and  by  the  precedents  which  had  been  established  even  at 
that  early  day,  and  in  that  pioneer  community.  The  instrument 
framed  by  the  convention Q  provided  for  submitting  amendments  which 
had  been  approved  by  two  successive  general  assemblies  7  and  also  for 
submitting  proposals  for  a  convention  by  a  two-thirds  vote  of  any 
assembly,  though  the  proposal  of  the  same  amendment  oftener  than 
once  in  six  years  was  forbidden. 

But  this  instrument  of  1844  was  rejected  by  the  people,8  and  a 
lively  debate  was  precipitated  in  the  next  legislature  as  to  whether 
the  same  instrument  should  be  resubmitted.9  The  advocates  of  this 
plan  finally  prevailed10  and  the  proposed  constitution  went  once  more 
to  the  people,  only  to  be  rejected  again,  though  by  a  smaller  majority.11 
The  legislature  now  took  the  question  into  its  own  hands.  Without 

1  Shambaugh,  "Documentary  Material,"  etc.,  I,  141-143. 

2  Iowa  Laws,  1844,  Chap.  IX,  13.  3  Id.  sec.  9. 

4  Shambaugh,  "Documentary  Material,"  etc.,  I,  148,  149.  Different  estimates 
of  the  vote  are  given,  but  all  show  a  strong  preponderance  in  favor  of  the  constitution. 

6  See  its  Debates,  edited  by  Shambaugh  (Iowa  City,  1900). 

8  Shambaugh,  "Documentary  Material,"  etc.,  Vol.  I,  No.  6,  pp.  150,  173. 

7  A  feature  retained  by  the  present  constitution.     Art.  X,  sec.  i. 

8  The  majority  against  was  996  in  a  vote  of  over  13,000.     Shambaugh,  "Docu- 
mentary Material,"  etc.,  I,  179,  180. 

8  Shambaugh,  Debates,  269  et  seq. 

10  Iowa  Laws,  1845,  Chap.  XIII,  3.     The  act  was  vetoed  by  the  Governor  but 
passed  again  by  the  necessary  two-thirds. 

11  421  out  of  about  15,000.     Shambaugh,  "Documentary  Material,"  etc.,  I,  184. 


POPULAR   RATIFICATION   IN  THE   LOUISIANA  PURCHASE    277 

submitting  a  proposal  it  passed  an  act l  calling  a  convention,  and  pro- 
viding for  the  election  of  delegates.  This  body  met  at  Iowa  City  2 
in  May,  1846,  and  framed  an  instrument 3  which  at  last  received  the 
assent  of  the  people  and  remained  for  more  than  a  decade  the  funda- 
mental law  of  Iowa. 

This  instrument  prohibited  slavery,4  but  restricted  the  franchise 
to  white  males.5  It  provided  for  amendment  after  1870  through  a 
convention  only,  to  be  called  by  a  majority  vote  of  the  people  on 
a  proposal  submitted  through  an  ordinary  legislative  act.6  This  was 
the  instrument  used  so  extensively  by  the  California  convention  three 
years  later.7 

In  1857  the  voters  ratified  a  new  constitution  8  whose  amendment 
provisions  were  like  those  of  the  instrument  of  1844. 

E.    Kansas 

The  state  of  Kansas  passed  through  a  memorable  experience  in 
constitution-making  during  its  early  history;  and  while  the  main 
interest  centred  in  the  substance  and  contents  of  the  constitution 
rather  than  in  the  manner  of  its  establishment,  the  record  of  this 
period  nevertheless  constitutes  an  important  chapter  in  the  develop- 
ment of  the  practice  of  popular  participation.  The  story  of  Kansas 
as  the  battleground  of  contending  factions  over  the  slavery  question 
is  a  familiar  one,  and  belongs  to  the  domain  of  general  history.  Hardly 
had  the  territorial  government  been  organized  when  a  movement  was 
started  by  the  free-soil  party  looking  toward  the  formation  of  a  state 
government  with  a  constitution  reflecting  that  party's  views  on  the 
slavery  question.  Various  unofficial  meetings  held  in  the  territory 
during  the  summer  of  1855  resulted  in  the  calling  of  a  so-called  con- 
stitutional convention  at  Topeka  on  the  igth  of  September  of  that 
year.9  This  organization  met  at  the  time  appointed,  and  has  been 

1  Iowa  Laws,  1846,  Chap.  XXXVII,  37. 

2  See  its  Debates,  edited  by  Shambaugh  (Iowa  City,  1900). 

3  It  is  printed  in  Iowa  Laws,  1847,  i.     The  document  which  Mr.  Poore  ("Charters 
and  Constitutions,"  I,  536)  gives  as  the  constitution  of  1846,  is  really  that  of  1857,  the 
latter  being  printed  twice.     The  two  are  nearly  alike,  as  both  followed  closely  the  re- 
jected instrument  of  1844. 

4  Art.  II,  sec.  23.  8  Art.  II,  sec.  i.  •  Art.  XI,  sec.  i. 
7  See  post,  Chap. XVIII.            8  Poore,  "Charters  and  Constitutions,"  I,  552. 

9  On  the  preliminary  movement  see  Holloway,  "History  of  Kansas"  (Lafayette, 
Indiana,  1868),  179  et  seq.  Cf.  Spring,  "Kansas"  (American  Commonwealth  Series, 
Boston,  1885),  68  et  seq. 


278  THE   PEOPLE'S   LAW 

pronounced  "one  of  the  most  important  bodies  of  men  ever  convened  in 
Kansas."  *  The  instrument  framed  by  it  was  of  course  an  anti-slavery 
document,2  though  not  so  radical  as  part  of  the  delegates  desired.3 

The  instrument  provided  for  its  own  ratification  by  the  people 
and  also  for  the  submission  of  other  proposals  at  the  same  time,4  but 
its  provision  for  future  amendment  was  decidedly  antiquated,  for  it 
adopted  the  old  Connecticut  system  requiring  submission  by  a  two- 
thirds  vote  of  two  successive  legislatures,  and  prohibited  any  amend- 
ment for  the  ensuing  ten  years  or  more  than  once  in  five  years  there- 
after.5 The  election  at  which  this  instrument  was  voted  upon  seems 
to  have  been  little  more  than  "a  free-soil  primary."6  The  vote 
was  1731  to  46.  It  was  not  accepted  by  Congress,  nor  generally 
regarded  as  valid  or  regular.7 

The  next  move  toward  a  constitution  for  Kansas  was  made  by  the 
opposing  party,  and  the  forms  of  law  were  more  carefully  observed. 
An  act  was  first  passed  by  the  legislature,  submitting  to  the  people 
the  question  of  calling  a  convention.  This  time  the  election  was  a 
pro-slavery  primary,  and  the  poll  was  favorable  to  a  convention.8 
Another  act  was  then  passed  providing  for  a  convention,  but  contain- 
ing no  requirement  that  its  work  should  be  submitted  to  the  people. 
Chiefly  on  the  ground  of  this  omission  the  act  was  vetoed  by  the 
territorial  governor,  whose  message  on  the  question  throws  an  inter- 
esting side-light  on  the  state  of  public  opinion  as  regards  the  right  of 
the  people  to  participate  in  constitution-making.  Inter  alia  the  gov- 
ernor said :  — 

"The  position  that  a  convention  can  do  no  wrong,  and  ought  to  be  invested 
with  sovereign  power,  and  that  its  constituents  have  no  right  to  judge  of  its  acts, 
is  extraordinary  and  untenable. 

"  The  history  of  State  constitutions,  with  scarcely  an  exception,  will  exhibit 
a  uniform  and  sacred  adherence  to  the  salutary  rule  of  popular  ratification."  * 

1  Holloway,  "History  of  Kansas,"  194. 

2  See  Poore,  "Charters  and  Constitutions,"  I,  581,  582.     Section  6  of  Article  i 
prohibited  slavery,  and  Section  21  prohibited  the  indenture  of  any  negro  or  mulatto. 

3  Holloway,  "History  of  Kansas,"  195.    The  proposal   to  strike  out   the  word 
"  white  "  from  the  constitution  was  defeated  by  a  vote  of  24  to  7,  and  the  franchise 
was  not  extended  to  the  negro. 

4  Art.  XII,  sec.  n;    Poore,  "Charters  and  Constitutions,"  I,  592. 

6  Art.  XVI;   Poore,  "Charters  and  Constitutions,"  I,  591. 

8  Spring,  "Kansas"  (American  Commonwealth  Series,  Boston,  1885),  71. 

7  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  sec.  212. 

8  Id.  sec.  213. 

9  Kansas  Historical  Collections,  IV,  717.    The  governor  had  said  in  a  previous 


POPULAR   RATIFICATION   IN  THE   LOUISIANA  PURCHASE    279 

The  constituent  act  was  passed  over  the  governor's  veto,  delegates 
were  chosen  at  an  election  from  which  the  anti-slavery  men  still  held 
aloof,  and  the  convention  met  at  Lecompton  in  the  autumn  of  1857. 
It  framed  an  instrument  which  embodied  the  "social  compact" 
theory l  of  Southern  constitutions  of  several  decades  previous,  expressly 
legalized  the  institution  of  slavery,2  and  excluded  free  negroes  from 
the  state.3  It  provided,  however,  for  submission  "  to  all  the  free  white 
male  inhabitants."  4  Its  provision  for  amendment,  which  was  not  to 
become  operative  until  1864,  was  through  a  convention  to  be  called 
after  taking  the  sense  of  the  people,  but  slavery  was  excluded  from 
the  subjects  of  which  it  might  take  cognizance.5  The  clause  provid- 
ing for  submission  specified  two  classes  of  ballots,  one  of  which  should 
be  indorsed  "constitution  with  slavery,"  and  the  other  "constitution 
with  no  slavery."  The  election  pursuant  to  this  provision  took  place 
in  December,  1857,  and  as  the  free-soil  party  took  no  part,  there  was 
an  overwhelming  majority  on  the  face  of  the  returns  in  favor  of  the 
"constitution  with  slavery."6  Meanwhile,  however,  the  legislature 
controlled  by  the  opposite  party  convened  and  repealed  the  act  pro- 
viding for  the  convention,  and  passed  one  requiring  the  instrument 
as  a  whole  to  be  resubmitted.7  This  time  the  constitution  was  re- 
jected by  a  majority  much  larger  than  it  had  received  at  the  preceding 
election.8  In  1858  Congress  passed  an  act  in  effect  again  submitting  it.9 

In  the  same  year  the  legislature  called  another  convention  without 
a  previous  consultation  of  the  people,  and  delegates  were  elected  who 
met  first  at  Mineola,  and  afterward  at  Leavenworth.  They  framed 
an  instrument  which  omitted  the  obnoxious  provisions  regarding 
slavery  and  provided  for  its  own  ratification  by  the  people,10  but  re- 
quired a  three-fifths  vote  of  the  legislature  to  submit  either  an  amend- 
ment or  a  proposal  for  a  convention.11  It  likewise  adopted  the  New 
Hampshire  system  of  periodical  consultation  as  modified  by  New 

message :  "  Direct  popular  vote  is  necessary  to  give  it  [the  constitution]  sanction  and 
effect."     Id.  719. 

Bill  of  Rights,  sec.  i;  Poore,  "Charters  and  Constitutions,"  I,  609. 

Bill  of  Rights,  sec.  23 ;  Poore,  "  Charters  and  Constitutions,"  I,  610. 

Sched.  7;  Poore,   "Charters  and  Constitutions,"  I,   611. 

Sched.  14;  Poore,  "Charters  and  Constitutions,"  I,  612. 

Id. 

The  vote  was  6226  to  569.  7  Holloway,  "History  of  Kansas,"  474  et  seq. 

8  The  vote  was  10,226  to  138.          °  Greeley,  "American  Conflict,"  I,  250. 

10  Sched.  sec.  5;  Poore,  "Charters  and  Constitutions,"  I,  628. 

11  Art.  XVIII;    Poore,  "Charters  and  Constitutions,"  I,  627. 


280  THE   PEOPLE'S   LAW 

York,  and  fixed  the  period  at  ten  years.1  The  instrument  framed  by 
this  convention  received  a  majority  of  more  than  three  to  one  on  the 
face  of  the  returns.2  But  it  was  apparent  that  the  participation  of 
the  electors  was  not  general  and  Congress  refused  to  accept  the  in- 
strument because  of  the  sparseness  of  the  territory's  population.3 
In  the  following  year,  however,  the  legislature  once  more  submitted 
the  question  of  calling  a  convention,  and  the  poll  was  favorable.4 
Pursuant  to  a  subsequent  act  providing  for  a  fourth  convention,  dele- 
gates assembled  at  Wyandotte  in  June,  1859,  and  framed  the  constitu- 
tion under  which  Kansas  was  at  last  admitted  into  the  Union.  It 
was  modelled  on  the  Topeka  instrument  of  four  years  previous.5 
Its  treatment  of  the  slavery  question  was  similar,  but  in  providing 
for  amendment  it  retained  the  two-thirds  requirement  of  the  Leaven- 
worth  constitution  relative  to  both  amendments  and  conventions, 
and  omitted  the  clause  providing  for  a  periodical  consultation  of  the 
people. 

Thus  at  last  the  state  of  Kansas  secured  a  permanent,  fundamen- 
tal code,  for  the  Wyandotte  constitution  as  a  whole  has  never  been 
displaced,  though  numerous  amendments  have  been  added.6  Indeed, 
the  intensity  of  the  struggles  and  the  importance  of  the  issues  involved 
seem  to  have  contributed  in  Kansas,  as  they  had  during  the  revolution- 
ary period  in  Massachusetts,  to  the  permanence  of  the  instrument 
which  was  finally  evolved. 

F.   Nebraska 

The  commonwealth  of  Nebraska  entered  upon  the  stage  of  history 
after  the  movement  for  popular  ratification  had  been  elsewhere  mostly 
completed.  There  are,  however,  some  features  of  its  early  history 
which  throw  an  interesting  side-light  on  the  movement  by  reproduc- 
ing the  experience  of  other  communities. 

The  constitutional  beginnings  of  Nebraska  are  signalized  by  the 
organization  of  society  on  a  basis  independent  of  any  formal  existing 
government.  When  the  first  settlers  entered  the  territory  there  was 

1  Art.  XVIII;  Poore,  "  Charters  and  Constitutions,"  I,  627. 

2  The  vote  was  4346  to  1257. 

3  Jameson,  "Constitutional  Conventions"  (4th  Ed.,  Chicago,  1887),  sec.  216. 

4  The  vote  was  5306  to  1425.  6  See  Holloway,  "History  of  Kansas,"  196. 
0  See  Poore,  "Charters  and  Constitutions,"  I,  645. 


POPULAR   RATIFICATION   IN   THE   LOUISIANA  PURCHASE     281 

indeed  no  government  in  operation.  The  Federal  officers  had  not 
yet  arrived,  and  no  laws  were  in  force  except  the  acts  of  Congress 
which  had  mostly  a  general  application. 

In  this  situation  the  Nebraska  settlers  did  what  those  of  early 
Tennessee  and  New  England  had,  with  such  important  consequences, 
done  before  them.  They  formed  a  government  of  their  own,  and  in 
the  autumn  of  1854  adopted  a  compact  which  like  the  instruments  of 
those  already  referred  to,  acquired  validity  from  the  assent  and  sub- 
scription of  all.  As  land  was  then  the  chief  item  of  wealth  in  the  terri- 
tory, the  animating  purpose  of  this  movement  was  the  protection  of 
land  claims,  but  it  assumed  the  form  of  a  genuine  government,  including 
the  establishment  of  a  judicial  system.  It  provided  inter  alia  that 

"  any  person  to  receive  the  benefit  of  the  foregoing  regulations  must  subscribe 
thereto  .  .  .  and  is  in  honor  bound  when  called  on  to  assist  the  marshal  in  the 
performance  of  his  duties."  1 

From  the  contemporary  newspaper  accounts  it  appears  that  nu- 
merous disputed  titles  were  adjudicated,  that  the  decisions  of  the 
arbitration  committee  were  respected  and  enforced,  and  that  the  asso- 
ciation continued  to  exercise  this  most  important  function  of  a 
government  for  a  considerable  period.2 

This  Belleview  association  was  not,  however,  the  only  one  of  its 
kind  in  the  territory.  In  the  then  small  hamlet,  a  few  miles  to  the 
north,  a  similar  organization  was  formed,  known  as  the  "  Omaha 
Claim  Club."  It  does  not  seem  to  have  left  a  compact,  like  the  former, 
and  its  record  is  marred  by  an  abuse  of  power  and  a  perversion  of  its 
legitimate  purpose  to  selfish  and  oppressive  ends.3  But  the  two 
organizations  well  illustrate  the  tendency  of  frontier  communities  to 
revert  to  archaic  political,  as  well  as  other,  conditions,  and  the  Belle- 
view  compact  of  1854  is  entitled  to  a  place  among  the  primitive,  popu- 
lar local  constitutions. 

The  precedent  of  popular  ratification  thus  established  has  never 
been  departed  from  in  Nebraska.  Five  years  after  the  adoption  of 
the  Belleview  compact  and  nearly  a  decade  before  the  state's  admis- 

1  From  the  Nebraska  Palladium,  Belleview,  September,  1854;  reprinted  in  Omaha 
Mercury  for  May  10,  1901.  2  Id. 

3  See  an  account  of  its  operations  in  Baker  v.  Morton,  12  Wallace  (U.S.)  150; 
Brown  v.  Pierce,  7  Id.  205.  Also  in  the  local  histories:  Sorensen,  "History  of 
Omaha"  (1889);  Savage  and  Bell,  "History  of  Omaha"  (1894).  Cf.  Bell,  "History 
of  Washington  County,"  for  accounts  of  similar  associations  there. 


282  THE   PEOPLE'S   LAW 

sion,  the  territorial  legislature  passed  an  act  submitting  to  the  people 
the  question  of  calling  a  constitutional  convention,  providing  for  the 
election  of  delegates,  and,  in  case  the  proposal  was  adopted,  that 
they  should  meet  at  the  capital  — 

"  to  prepare  and  frame  a  constitution  for  the  state  of  Nebraska,  to  be  submitted 
to  the  electors  of  this  territory,  for  adoption  and  approval  by  them.  And  unless 
it  shall  be  so  submitted,  adopted  and  approved,  at  an  election  to  be  appointed 
by  the  constitutional  convention,  it  shall  not,  for  any  purpose  whatever,  be  deemed 
or  held  to  be  the  act  of  the  people  of  Nebraska." * 

It  will  be  seen  that  the  requirement  of  popular  ratification  here 
is  much  more  explicit  than  in  the  ordinary  constituent  act.  The 
proposal,  however,  was  rejected  by  the  voters.2 

In  1866  the  legislature 3  framed  a  constitution  which  was  submitted 
to  the  people  and  ratified  by  the  narrow  majority  of  one  hundred,4 
and  in  1871  a  convention  met  and  framed  an  instrument  which  was 
rejected.5 

The  present  constitution  was  framed  and  adopted  in  1875  by  an 
overwhelming  majority,6  and  it  insured  the  permanence  of  popular 
ratification  by  requiring  it  for  all  future  constitutional  changes.7 


G.    Other  States 

The  constitutional  history  of  the  other  states  formed  from  the 
Louisiana  Purchase  has  not  been  eventful.  Minnesota  has  never 

1  Laws  of  the  Territory  of  Nebraska,  1859  (Nebraska  City,  1860),  45,  46. 

2  The  vote  was  2372  to  2094  against  the  convention.     "History  of  Nebraska" 
(Chicago,  1882),  120. 

3  A  convention  had  met  in  Omaha  on  July  4,  1864,  pursuant  to  an  enabling  act 
passed  by  Congress,  but  owing  to  depressed  business  conditions  no  instrument  was 
framed,  and  the  convention  adjourned  sine  die.     See  Judge  Maxwell's  opinion  in  State 
v.  Boyd,  31  Neb.  746,  747. 

4  "History  of  Nebraska,"  128.     Judge  Crounse  in  Brittle  v.  People,  2  Neb.  211, 
says  that  this  instrument  "was  originally  drafted  in  a  lawyer's  office  by  a  few  self- 
appointed  individuals." 

"  One  was  drawn  up  by  a  caucus  of  unofficial  citizens,  and  became  the  first  con- 
stitution of  Nebraska."  — Pavey,  "Modern  State  Constitutions,"  Magazine  of  Ameri- 
can History,  XXIII,  153. 

6  The  contest  was  close  and  the  majority  only  641.     The  provision  for  taxing 
church  property  was  generally  thought  to  have  brought  about  the  result.     "History 
of  Nebraska,"  144,  145. 

9  The  vote  was  30,202  to  5474.     "History  of  Nebraska,"  150. 

7  Constitution  of  1875,  Art.  XV;  Poore,  II,  1232,  1233. 


POPULAR   RATIFICATION   IN   THE   LOUISIANA   PURCHASE     283 

displaced  its  original  constitution,  framed  in  1857  by  two  separate 
conventions,  representing  the  different  political  parties,  but  which 
agreed  upon  the  same  instrument  and  submitted  it  to  the  people.1 
Its  amendment  system  is  one  of  the  most  advanced,  requiring  only 
a  majority  vote  of  one  legislature  for  submission,  though  specifying 
two-thirds  for  recommending  to  the  electors  the  calling  of  a  con- 
vention.2 

The  three  states  formed  from  the  northwest  portion  of  the  Louisi- 
ana Purchase  and  admitted  under  the  enabling  act  of  February  22, 
1889,  submitted  their  constitutions  pursuant  to  the  requirements  of 
that  act.3  There  seems,  however,  to  be  little  uniformity  in  their  system 
of  amendment.  Thus,  North  Dakota  adheres  to  the  Pennsylvania 
plan  of  submission  by  a  majority  vote  of  two  successive  legislatures,4 
while  South  Dakota,  which  enjoys  the  distinction  of  being  the  first  to 
adopt  the  initiative  and  referendum,5  has  reproduced  the  Minne- 
sota system  for  the  submission  of  amendments,  except  that  "a  ma- 
jority of  the  electors  voting  thereon"  is  sufficient.6  Montana  incor- 
porates the  clause  common  to  several  of  the  states,  requiring  the  work 
of  future  conventions  to  be  submitted.7 

This,  likewise,  appears  in  the  Wyoming  constitution,8  framed  and 
ratified  in  1889,  in  advance  of  the  enabling  act  and  accepted  by 
Congress  in  1890.  That  instrument  also  provides  9  for  the  submis- 
sion of  amendments  and  proposals  for  a  convention  by  a  two-thirds 
vote  of  a  single  legislature  and  their  adoption  by  a  majority  of  the 
voters. 

Washington,10  admitted  under  the  omnibus  act  of  1889,  and 
Idaho  n  in  advance  of  admission,  in  the  same  year  sent  their  con- 
stitutions to  the  people  and  expressly  required  the  submission  of 
all  future  constitutional  changes. 

The  new  constitution  of  Oklahoma,  adopted  by  an  overwhelming 
majority  on  September  17,  1907,  pursuant  to  the  provisions  of  the 
enabling  act,  which,  however,  required  the  approval  of  the  President 
as  well  as  of  the  people  of  both  constituent  territories,  provides  for 

1  McVey,  "The  Government  of  Minnesota"  (New  York,  1901),  18  et  seq. 

2  Art.  XIV;  Poore,  II,  1040.  3  U.S.  Stats,  at  Large,  XXVI,  Ch.  180,  Sec.  8. 

4  Art.  XV,  sec.  202 ;  North  Dakota  Revised  Codes,  1905,  Ixxiv. 

5  Post,  Chap.  XXIX.  •  Art.  XXIII;  South  Dakota  Laws,  1890,  xlvi. 

7  Art.  XIX,  sec.  8.  8  Art.  XX;  Wyoming  Session  Laws,  1890-1891,  69. 

9  Id.  »•  Washington  Constitution,  Art.  XXIII,  sec.  8. 

11  Idaho  Constitution,  Art.  XX,  sec.  4. 


284  THE   PEOPLE'S   LAW 

revision  by  popular  vote,  and  also,  and  this  for  the  first  time  in  an 
original  constitution,  applies  the  initiative  principle  to  constitutional 
amendments,  so  that  the  people  are  no  longer  required  to  await  the 
action  of  the  legislature  nor  confined  to  the  clumsy  expedient  of  in- 
formal petition,  but  may  demand  the  submission  of  amendments  as 
a  matter  of  right.1 

1  Oklahoma  Constitution,  Art.  V. 


CHAPTER   XVIII 

POPULAR  RATIFICATION  IN  THE  STATES  OF  THE  MEXICAN  CESSION 

A.    Texas 

IN  Texas,  as  in  Florida,  popular  ratification  as  a  part  of  its  public 
law  is  older  than  the  state.  The  convention  of  delegates  which,  in 
1836,  formally  declared  independence  of  Mexico,  likewise  framed  a 
constitution1  for  the  "  Republic  of  Texas."  But  this  was  not,  like 
the  act  of  separation,  left  to  depend  on  the  mere  will  of  the  convention. 
It  was  submitted  to  the  people  and  ratified  by  them  at  an  election 
held  the  same  year.2  On  March  i,  1845,  Congress  passed  a  resolu- 
tion for  annexing  Texas,  and  one  of  its  conditions  was  that  a  constitu- 
tion should  be  transmitted  to  the  President,  "with  proper  evidence 
of  its  adoption  by  the  people  of  said  Republic  of  Texas."  3 

A  convention  assembled  on  July  4  of  the  same  year  and  framed 
a  constitution  for  the  new  state  which  contained  the  following 
provision :  — 

"  Immediately  after  the  adjournment  of  this  Convention,  the  President  of 
the  Republic  shall  issue  his  proclamation,  directing  the  Chief  Justices  of  the  sev- 
eral counties  of  this  Republic,  and  the  several  chief  justices  and  their  associates 
are  hereby  required,  to  cause  polls  to  be  opened  in  their  respective  counties,  at 
the  established  precincts,  on  the  second  Monday  in  October  next,  for  the  purpose 
of  taking  the  sense  of  the  people  of  Texas  in  regard  to  the  adoption  or  rejection 
of  this  Constitution ;  and  the  votes  of  all  persons  entitled  to  vote  under  the  exist- 
ing laws  of  this  constitution  shall  be  received.  Each  voter  shall  express  his  opin- 
ion by  declaring  by  a  viva-voce  vote  for  '  the  constitution  accepted,'  or  '  the  con- 
stitution rejected,'  or  some  words  clearly  expressing  the  intention  of  the  voter."4 

The  instrument  thus  submitted  was  adopted  by  an  overwhelm- 
ing majority.5 

1  See  its  text  in  Sayles'  Texas  Statutes  (St.  Louis,  1888),  IV,  154  et  seq. 

2  Id.  133-  3  Id.  1 77-1 79. 

4  Id.  217,  218;  Texas  Constitution,  1845,  Art.  XIII,  sec.  5;  Poore,  II,  1781. 
6  Jameson,  "Constitutional  Conventions,"  654.     The  vote  was  4174  in  favor,  and 
312  against. 

285 


286  THE   PEOPLE'S   LAW 

In  February,  1861,  the  legislature  passed  a  resolution  requiring 
the  ordinance  of  secession  to  be  submitted,1  which  was  done,2  the  re- 
sult being  favorable  to  adoption,  though  the  vote  was  but  little  more 
than  half  that  cast  at  the  presidential  election  of  the  preceding  autumn.3 

The  secession  constitution  of  the  same  year  was  also  submitted 
to  the  electors 4  and  the  same  course  was  followed  with  regard  to  the 
instruments  of  1866,  1868,  and  i8y5.5  The  convention  of  1868, 
indeed,  attempted  to  put  into  force  a  separate  ordinance  without 
submission,  but  this  was  declared  inoperative  by  the  Supreme  Court.6 
And  so  deeply  rooted  has  become  the  practice  of  popular  ratification 
in  Texas,  that  this  is  one  of  the  states  where  legislation  by  constitu- 
tional amendment  is  frequently  attempted,7  and  the  statutory  refer- 
endum frequently  employed.8 

B.    California 

The  constitutional  beginnings  of  California  antedate  the  formal 
organization  of  the  state  government  and  are  probably  to  be  found 
in  those  popular  but  unofficial  organizations  which  took  the  place 
of  regular  government  when  the  state  was  first  settled  by  Americans. 
Just  as  in  Iowa,  where  the  principal  source  of  wealth  and  species  of 
property  was  land,  the  land  associations  blazed  the  path  for  organized 
political  society,  so  in  California,  where  the  leading  industry  was 
mining,  the  miners'  associations  and  miners'  codes  performed  a 
similar  office.  As  a  recent  writer 9  on  this  subject  observes  :  — 

"  That  army  of  State-builders  who  poured  out  their  mighty  toil  upon  the 
placer  mines  of  the  Far  West  .  .  .  had  no  sooner  pitched  their  tents  beneath 
the  Sierra  snow  peaks,  than  they  called  meetings  of  'all  the  freemen  of  the 
camp,'  created  mining  '  districts,'  elected  officers,  clothed  them  with  sufficient 
authority,  and  ordained  laws  under  which  peace  was  secured  and  prosperity 
reigned  for  years." 


1  Tenney,  "Military  and  Naval  History  of  the  Rebellion,"  33. 

2  Sayles,  Texas  Statutes  (St.  Loxu^  1888),  IV,  257,  258. 

3  Tenney,  "Military  and  Naval  Sstory  of  the  Rebellion,"  34. 

4  Jameson,  "Constitutional  Conventions,"  654.  5  Id. 
8  Quinlan  v.  R.  Co.,  89  Tex.  356;  34  S.W.  Rep.  744. 

7  Oberholtzer,  "The  Referendum  in  America"  (New  York,  1900),  166,  168. 

8  See  post,  Chap.  XXIX.  jflk 

9  Shinn,  "Land  Laws  of  Mining  Distr^B  Hlhns  Hopkins  University  Studies,  II, 
554.     The  author  further  says  (556): —    ^^^ 

"A  volume  of  two  thousand  pages  would  hardly  be  sufficient  to  contain  the  com- 
plete laws  of  all  the  Mining  Districts  of  the  Far  West.     These  laws  in  their  complete 


RATIFICATION   IN   STATES   OF   THE   MEXICAN   CESSION      287 

Another  manifestation  of  this  capacity  on  the  part  of  the  early 
Californians  for  self-government  appears  in  the  organization  of  those 
popular  tribunals  which  bore  so  important  a  part  in  her  history,  and 
especially  in  that  of  her  metropolis  during  the  early  fifties.  The 
most  voluminous  of  her  historians  has  observed :  — 

"Nothing  could  have  more  plainly  evidenced  the  moral  feeling  that  animated 
the  better  class  of  citizens  than  the  Vigilance  Committee  movement.  .  .  .  The 
lesson  of  self-help  so  early  learned  by  the  people  of  California,  fixed  in  their 
minds  the  sentiment  of  supremacy.  They  were  freemen  in  the  broadest  sense."  * 

It  was  from  one  of  these  voluntary  and  unofficial,  but  nevertheless 
popular  bodies  in  the  truest  sense  of  the  term,  that  the  first  demand 
came  in  California  for  "a  state  constitution  to  be  submitted  to  the 
people."  As  early  as  1848,  the  year  after  the  discovery  of  gold,  mass 
meetings  were  held  in  various  parts  of  California  for  the  purpose  of 
inaugurating  a  movement  toward  a  provisional  government.2  In 
the  metropolis,  one  of  the  results  of  this  movement  was  the  organiza- 
tion of  the  San  Francisco  Legislative  Assembly.3  Congress  adjourned 
in  March,  1849,  without  any  formal  response  to  the  demand  for  an 
organized  government  which  had  come  from  California,  and  the 
San  Francisco  Legislative  Assembly  voiced  the  prevailing  opinion 
of  Californians  when,  in  the  language  above  quoted,  it  demanded 
not  only  a  settled  government  but  a  popular  constitution.4  Mean- 
while, however,  a  new  representative  of  American  authority  had 
arrived  in  the  person  of  General  Riley,  Provisional  Governor,  and 
while  ignoring  the  demand  of  the  San  Francisco  Assembly,  which 
had  recommended  a  constitutional  convention  to  be  held  at  San 
Jose*  in  August,  the  governor  himself  proceeded  on  June  3,  1849,  to 

form  are  usually  concise,  well -worded,  and  clear  in  meaning;  in  some  cases  they  were 
evidently  drawn  up  by  lawyers,  in  other  cases  by  men  of  good  general  education,  but 
totally  ignorant  of  law-phrases,  and  in  a  third  class  of  cases  they  are  the  work  of  igno- 
rant but  practical  and  much-in-earnest  frontiersmen." 

He  then  proceeds  to  give  examples  of  some  of  these  codes,  provisions  as  to  how 
claims  may  be  taken  and  held,  the  form  of  notice  of  the  claimant's  rights,  and  the  jury 
or  board  of  arbitrators  to  determine  disputes  over  claims.  The  whole  is  very  similar 
to  the  instruments  discussed  above  as  in  vogue  among  the  early  Iowa  settlers. 

1  Bancroft's  Works  (San  Francisco,  1887),  XXXVIII;  "  Popular  Tribunals,"  II, 
683,  678.     This  volume  is  an  exhaustive  discussion  of  the  "  Grand  Tribunal "  organized 
in  the  course  of  the  Vigilance  Committee  movement  in  California  in  1856. 

2  Hunt,  "The  Genesis  of  California's  First  Constitution,"  Johns  Hopkins  Univer- 
sity Studies,  XIII,  384.  3  Id. 

4  Hunt,  "  Legal  Status  of  California,  1846-1849,"  Annals  American  Academy,  XII, 
402,  403. 


238  THE   PEOPLE'S   LAW 

call  a  convention  to  meet  at  Monterey,  the  old  Spanish  capital,  in 
September.1  Delegates  were  elected  to  this  body,  which  has  been 
called  "a  unique  constitutional  convention."2  The  delegates  were 
thrown  much  upon  their  own  resources,  for  libraries  were  un- 
known, and  law  books  rare  in  the  California  of  that  day.3  But  some 
of  the  delegates  had  copies  of  the  Iowa  and  New  York  constitutions 
which  had  been  framed  and  submitted  only  three  years  before.4 
The  governor's  proclamation  had  prescribed  that  the  instrument 
to  be  framed  by  the  convention  should  "be  submitted  to  the  people 
for  their  ratification,"  5  and  there  was  no  discussion  of  this  in  the 
convention.  Indeed,  it  is  altogether  probable  that  without  such  a 
specification  in  the  governor's  document  the  instrument  would  have 
been  submitted.  Not  only  the  formal  demand  of  the  San  Francisco 
Assembly  but  the  whole  history  of  California  since  the  American 
occupation  was  favorable  to  such  a  plan  and  would  have  made  any 
other  seem  irregular.  In  providing  for  future  amendments,  however, 
the  convention  hardly  reached  the  standard  of  the  models  which 
appear  to  have  been  most  studied.  The  old  Connecticut  system  of 
requiring  action  by  two  successive  legislatures  in  order  to  submit 
amendments,  was  incorporated,  and  a  majority  of  two- thirds  in  each 
house  was  required  for  submitting  proposals  for  a  convention.6 

The  ratification  of  the  constitution  was  practically  unanimous.7 
In  1862,  a  number  of  amendments  were  adopted,  including  one 
relating  to  the  amendment  clause  itself,  and  requiring  the  submission 
of  all  future  constitutions.8  In  1879,  an  entire  new  constitution  was 
ratified,9  and  since  then  California  has  entered  upon  a  new  phase  of 
constitutional  development.  No  state  has  made  such  abundant 
use  of  its  amendment  clause,  and  the  fundamental  code  of  the  Golden 
State  has  been  materially,  and  at  the  same  time  easily,  modified 
without  the  calling  of  a  convention  and  through  the  mere  submission 
of  proposals  and  their  ratification  by  the  electors.10 

1  Browne,  "Debates  in  the  Convention"  (Washington,  1850),  3-5. 

2  Hunt,  "Genesis  of  California's  First  Constitution,"  Johns  Hopkins  University 
Studies,  XIII,  394.  8  Art.  X;   Poore,  I,  203. 

3  Id.  395.  7  The  vote  was  12,061  against  811. 

4  Id.  413;  Browne,  "Debates  in  the  Convention,"  24.          8  Poore,  I,  211. 
6  Browne,  "  Debates  in  the  Convention,"  3. 

9  Jameson,  "Constitutional  Conventions,"  654. 

10^ioffett,  "The  Constitutional  Referendum  in  California,"  Political  Science  Quar- 
terly, XIII,  i.  The  author  shows  that  during  a  period  of  a  dozen  years,  twenty-eight 
amendments  were  submitted  in  this  manner. 


RATIFICATION    IN    STATES   OF   THE   MEXICAN   CESSION       289 


C.    Utah 

The  people  of  this  commonwealth  appear  to  have  had  unusual 
preparation  for  the  adoption  and  enjoyment  of  the  system  of  popular 
ratification.  The  church  to  which  practically  all  of  its  early,  and 
most  of  its  present,  inhabitants  belong,  seems  to  have  carried  farther 
than  any  other,  in  theory  at  least,  the  Calvinistic  doctrine  of  "  common 
consent" ;  and  since,  as  is  often  remarked,  Mormonism  is  not  simply 
a  religious,  but  an  all-embracing  social  system,  the  prominence  of 
this  doctrine  in  the  polity  of  the  church  could  hardly  have  failed  to 
affect  the  political  habits  and  modes  of  thought  of  its  adherents. 

The  ablest  of  the  historians  of  this  church  thus  describes  its 
application  of  the  principle :  — 

"First  of  all  let  us  say  that  this  church  organization  I  have  described  while 
ordained  of  God,  cannot  subsist  without  the  consent  of  the  people.  ...  In  the 
very  incepti  n  of  organization  of  the  church,  the  Lord  taught  his  servant  that 
the  organization  he  was  about  to  bring  forth  recognized  the  right  of  the  people 
to  a  voice  in  its  affairs.  The  principle  of  common  consent  was  to  be  a  prominent 
factor  in  this  government,  as  well  as  the  voice  of  God.  It  is  true  of  ecclesiastical, 
as  it  is  of  civil  governments,  that  they  derive  their  just  powers  from  the  consent 
of  the  governed.  And  hence  it  is  a  law  of  the  church  that  '  no  person  is  to  be 
ordained  to  any  office  in  this  church  where  there  is  a  regularly  organized  branch 
of  the  same,  without  the  vote  of  that  church.'  And  it  is  further  provided  that 
'  all  things  shall  be  done  by  common  consent  in  the  church  by  much  prayer  and 
faith/ 

"  Not  only  was  the  consent  of  the  people  recognized  as  an  important  factor  in 
establishing  the  church  government,  but  it  is  also  provided  that  it  shall  be  often 
consulted  by  a  frequent  election  of  officers  on  the  plan  of  popular  acceptance. 
Twice  annually,  at  the  general  conference  of  the  church,  the  general  officers  are 
presented  to  the  people  for  acceptance.  Four  times  a  year,  at  the  quarterly  con- 
ference held  in  all  the  stakes  of  Zion  both  the  general  and  stake  officers  of  the 
church  are  presented  to  the  people  for  their  vote  of  confidence  and  support. 
Once  every  year  ward  conferences  are  held  where  a  similar  vote  is  taken  in  sup- 
port of  both  local  and  general  officers  of  the  ward. 

"  This  voting  is  not  a  formality.  There  is  virtue  in  it.  No  man  can  hold  a 
position  in  the  church  longer  than  he  can  command  the  support  of  the  members 
thereof ;  for  when  the  people  refuse  to  sustain  a  man  by  their  vote  no  power  in 
the  church  can  force  him  upon  the  people  against  their  will."  * 

Nevertheless,  the  first  constitution  of  the  proposed  state  of  Deseret, 
framed  by  a  convention  at  Salt  Lake  City  in  March,  i849,2  was 

1  Roberts,  B.  H.,  "A  New  Witness  for  God"  (Salt  Lake,  1895),  350-352. 

2  This  was  about  six  months  before  the  assembling  of  the  first  California  convention. 


2QO  THE   PEOPLE'S   LAW 

apparently  not  submitted.1  And  the  same  course  appears  to  have 
been  followed  with  other  proposed  constitutions.2  The  present 
instrument,  submitted  pursuant  to  the  requirements  of  the  enabling 
act,  was  ratified  by  a  pronounced  majority,3  and  contains  the  fol- 
lowing clause:  — 

"No  Constitution  or  amendments  adopted  by  such  (future)  Convention  shall 
have  validity  until  submitted  to,  and  adopted  by,  a  majority  of  the  electors  of  the 
State  voting  at  the  next  general  election."  4 

Utah  was  the  second  State  to  embody  into  its  constitution  the 
initiative  and  referendum.5 


D.   Oregon 

The  principle  of  popular  ratification  in  Oregon  begins  with  the 
earliest  organization  of  civilized  society  in  that  region.  As  early 
as  1843,  a  provisional  government  was  formed  which  appointed  a 
legislative  committee,  whose  function  it  was  to  frame  laws  and  report 
them  to  the  settlers  for  their  approval.6  An  early  sojourner  in  Oregon, 
speaking  of  this  provisional  government  shortly  after  its  organiza- 
tion, says: — 

"In  the  spring  of  1844  a  new  Legislative  Committee  was  elected,  which  em- 
braced two  or  three  lawyers  who  had  arrived  in  the  country  the  previous  fall. 
This  committee  passed  a  vote  recommending  several  important  alterations  in  the 
organic  laws,  which  were  found  to  be,  in  their  practical  operations,  somewhat 
defective.  As  the  people  had  not  yet  surrendered  their  law-making  power  into 
the  hands  of  the  Legislative  Committee,  it  was  necessary  to  call  an  election  to 
ascertain  the  will  of  the  people  in  relation  to  the  proposed  alterations  and  amend- 
ments. This  election  took  place,  and  resulted  in  the  adoption  of  the  organic  laws, 
with  the  proposed  alterations  and  amendments,  by  an  overwhelming  majority."  7 

With  such  a  schooling  in  self-government  and  popular  legislation, 
it  was  only  natural  that  the  first  fundamental  code  for  the  state  of 
Oregon  should  come  directly  from  the  people.  There  was  no  delay- 
ing until  Congress  should  pass  an  enabling  act,  but  a  convention 
assembled  at  Salem,  in  1857,  which  framed  a  constitution  providing 

1  Bancroft's  Works,  "History  of  Utah"  (San  Francisco,  1889),  XXVI,  440  et  seq. 

2  Id.  664.  3  31,305  to  7687.     Revised  Statutes  of  Utah  (1898),  72,  note. 
4  Utah  Constitution,  Art.  XXIII,  sec.  3.  5  See  post,  362. 

*  Gray,  "History  of  Oregon"  Chap.  XLIII.  "  Oregon  was  largely  settled  by  New 
Englanders,"  Yale  Law  Journal,  XVIII,  40. 

7  Hines,  quoted  in  Gray;  see  also  the  latter's  "History  of  Oregon,"  425. 


RATIFICATION    IN   STATES   OF   THE   MEXICAN   CESSION        291 

expressly  for  its  own  submission  to  the  electors,1  but  like  California, 
from  which  doubtless  the  provision  was  taken,  authorizing  amend- 
ments to  be  submitted  only  by  a  majority  vote  of  two  successive 
legislatures.2  Provisions,  both  authorizing  and  prohibiting  slavery 
were  likewise  submitted,  but  the  constitution  prohibited  Chinese 
afterward  coming  to  the  state  from  owning  land  or  mining  claims.3 
The  instrument  as  a  whole  has  never  been  displaced,  but  the  state 
has  recently  shown  its  adherence  to  early  traditions  by  adopting, 
through  constitutional  amendment,  the  referendum  in  ordinary  legis- 
lation,4 and  applying  the  initiative  principle  to  constitutional  changes.5 


E.   Other  States 

In  Colorado  the  submission  of  constitutions  has  been  the  state's 
policy  from  the  beginning.  As  early  as  1860  steps  were  taken  toward 
the  formation  of  an  organic  law,6  and  in  1864  an  instrument  was 
framed  and  submitted,  but  rejected.  The  following  year  a  different 
instrument  was  ratified  by  the  people,  but  the  act  of  admission  was 
vetoed  by  the  President 7  and  Colorado  remained  a  territory  for 
another  decade.  The  constitution  under  which  it  was  finally  admitted 
still  remains  in  force.  Its  amendment  clause,  like  that  of  Oregon, 
is  apparently  taken  from  California.8 

Nevada's  constitution,  ratified  by  the  people  in  1864  pursuant  to 
an  act  of  Congress,  after  a  proposed  constitution  had  been  rejected, 
is  also  modelled  closely  in  its  amending  clause  on  California's  first 
instrument,9  and  this  state  has  likewise  adopted  the  initiative  and 
referendum.10 

1  Art.  XVIII;  Poore,  "Charters  and  Constitutions,"  II,  1505. 

2  Id.  Art.  XVII.  «  See  post,  chap.  XXIX,  pp.  363,  364. 

3  Id.  Art.  XV.  5  Oregon  Laws,  1903,  244. 
8  Magazine  of  American  History,  XXIX,  273. 

7  Jameson,  "Constitutional  Conventions,"  655. 

8  Art.  XIX ;  Poore,  "  Charters  and  Constitutions,"  I,  245. 
8  Art.  XVI;  Poore,  II,  1262. 

10  See  post,  364,  365. 


CHAPTER  XIX 
POPULAR  RATIFICATION  IN  THE  FEDERAL  GOVERNMENT 

WHILE  the  practice  of  referring  all  constitutional  changes  to  the 
people  was  becoming  part  of  the  public  law  of  the  individual  states 
throughout  the  different  sections  of  the  Union,  a  parallel  process 
was  going  on  in  the  Federal  government.  As  in  many  of  the  states 
themselves,  that  idea  found  slight  lodgment  in  the  practice  of  the 
federal  government  at  its  beginning.  Commencing  with  the  Con- 
federation,—  for,  as  Lincoln  said,  "the  Union  is  much  older  than 
the  Constitution,"  l  —  we  find  little  trace  of  the  notion  of  consulting 
the  people.  In  certain  states,  as  we  have  seen,  notably  Massachu- 
setts 2  and  New  Hampshire,3  the  Articles  of  Confederation  were  sub- 
mitted for  popular  approval,  but  this  was  through  the  action,  not  of 
the  Federal,  but  of  the  state  government. 

A.     The  Constitutional  Convention 

It  has  even  been  declared  4  that  the  idea  of  referring  the  Federal 
constitution  to  the  people  was  not  suggested  in  the  constitutional 
convention.  But  there  was  more  than  a  suggestion  upon  more  than 
one  occasion  and  those  who  made  it  offered  some  cogent  reasons 
in  its  behalf. 

On  Tuesday,  June  5,  1787,  the  convention  considered 

"the  fifteenth  Resolution,  for  recommending  conventions  under  appointment  of 
the  people  to  ratify  the  new  Constitution,  .  .  .  Mr.  Madison  thought  this  pro- 
vision essential.  The  Articles  of  Confederation  themselves  were  defective  in  this 
respect,  resting,  in  many  of  the  States,  on  the  legislative  sanction  only.  .  .  .  For 
these  reasons,  as  well  as  others,  he  thought  it  indispensable  that  the  new  Consti- 

1  First  Inaugural  Address,  "Abraham  Lincoln,"  Nicolay  and  Hay,  III,  331. 

2  Ante,  168.  3  Ante,  180. 

4  "  No  proposition  seems  to  have  been  made  in  the  Federal  Convention  to  submit 
the  plan  to  the  direct  vote  of  the  people."  —  Borgeaud,  "Adoption  and  Amendment 
of  Constitutions,"  133. 

292 


RATIFICATION    IN   THE   FEDERAL   GOVERNMENT         293 

tution  should  be  ratified  in  the  most  unexceptionable  form,  and  by  the  supreme 
authority  of  the  people  themselves. 

"  Mr.  Gerry  observed,  that  in  the  Eastern  States  the  Confederation  had  been 
sanctioned  by  the  people  themselves.  He  seemed  afraid  of  referring  the  new 
system  to  them.  The  people  in  that  quarter  have  at  this  time  the  wildest  ideas 
of  government  in  the  world.  They  were  for  abolishing  the  Senate  in  Massachu- 
setts, and  giving  all  the  other  powers  of  government  to  the  other  branch  of  the 
Legislature."  1 

Two  weeks  later  in  Committee  of  the  Whole  a  series  of  proposi- 
tions by  Mr.  Patterson  of  Pennsylvania  was  under  discussion.  Mr. 
Madison  "observed  that  the  plan  of  Mr.  Patterson,  .  .  .  was  par- 
ticularly defective  in  two  of  its  provisions.  Its  ratification  was  not  to 
be  by  the  people  at  large,  but  by  the  Legislatures."  2 

Again  on  June  23,  the  question  arose  upon  a  motion  of  Mr. 
Ellsworth  that  the  instrument 

"  be  referred  to  the  Legislatures  of  the  States  for  ratification." 

"Col.  Mason  considered  a  reference  of  the  plan  to  the  authority  of  the  people 
as  one  of  the  most  important  and  essential  of  the  Resolutions.  The  Legislatures 
have  no  power  to  ratify  it.  They  are  the  mere  creatures  of  the  State  Constitu- 
tions, and  cannot  be  greater  than  their  creators.  And  he  knew  of  no  power  in 
any  of  the  Constitutions  .  .  .  that  could  be  competent  to  this  object.  Whither, 
then,  must  we  resort  ?  To  the  people,  with  whom  all  power  remains  that  has  not 
been  given  up  in  the  constitutions  derived  from  them." 3 

Mr.  Randolph  considered  it 

"worthy  of  consideration,  that  some  of  the  States  are  averse  to  any  change  in 
their  Constitution,  and  will  not  take  the  requisite  steps,  unless  expressly  called 
upon  to  refer  the  question  to  the  people.  .  .  . 

"  Mr.  Madison  thought  it  clear  that  the  Legislatures  were  incompetent  to  the 
proposed  changes.  .  .  .  There  might,  indeed,  be  some  Constitutions  within  the 
Union  which  had  given  a  power  to  the  Legislature  to  concur  in  alterations  of 
the  Federal  compact.  But  there  were  certainly  some  which  had  not;  and  in  the 
case  of  these,  a  ratification  must  of  necessity  be  obtained  from  the  people."  4 

The  motion  to  refer  the  draft  to  state  legislatures  was  defeated,5 
and  while  the  people  were  not  asked  to  pass  directly  upon  the  new 
instrument  it  would  seem  that  some  of  the  leading  spirits  in  the  con- 
vention considered  this  the  sole  correct  method.  And  not  only  so, 

1  Madison,  "  Journal  of  the  Federal  Convention,"  II,  795,  796. 

2  Id.  897,  808;  "Documentary  History  of  the  Constitution"  (House  Documents, 
56th  Cong.  2d  Sess.,  Ill,  No.  529,)  p.  156. 

3  Madison,  "Journal  of  the  Federal  Convention,"  II,  1177  et  seq.;  the  Madison 
Papers  (Gilpin's  Ed.,  Washington,  1840). 

4  Madison,  "Journal,"  1179,  1183.  6  Id.  1184. 


294  THE   PEOPLE'S   LAW 

but  their  utterances,  quoted  above,  were  used  long  afterward  in 
Congress  as  weighty  arguments  for  an  important  extension  of  the 
doctrine  of  popular  ratification  in  submitting  to  the  people  directly 
amendments  to  the  same  constitution.1 


B.    The  Enabling  Acts 

From  the  convention  we  must  turn  to  Congress,  where  at  first 
the  idea  of  consulting  the  people  seemed  to  find  little  favor. 

The  earliest  opportunity  for  dealing  with  the  question  came  in 
the  admission  of  new  states  which  had  not  previously  framed  con- 
stitutions of  their  own.  The  first  three  states  added  to  the  Union 
had  formed  their  governments  and  adopted  their  constitutions  in 
advance  and  nothing  was  left  to  be  done  by  Congress  except  to  pass 
acts  of  admission.2  It  was  not  until  the  second  year  of  the  nine- 
teenth century  that  Congress  began  to  exercise  its  powers  to  prescribe 
the  manner  of  adopting  a  state  constitution,  and  its  first  effort  in 
this  direction  was  what  is  known  as  the  " Enabling  Act"  for  Ohio. 
It  was  hardly  to  be  expected  of  the  Congress  of  that  day  that  it  should 
expressly  require  the  constitution  of  this  new  state  to  be  ratified  by 
the  people,  for  at  that  time  popular  ratification  had  actually  been 
employed  in  less  than  one-fourth  of  the  states.  But  this  first  of  "ena- 
bling acts"  went  farther  than  to  omit  the  requirement :  it  failed  even 
to  allow  the  people  to  participate  directly  in  making  their  constitu- 
tion. The  convention  provided  for  by  the  act  was  "  authorized  to 
form  a  constitution  and  state  government,"  or  to  call  another  con- 
vention which  should  "form/0r  [sic]  the  people  of  the  said  state,  a 
constitution  and  state  government,"  3  but  no  authority  was  given 
for  seeking  the  consent  of  the  people  "to  form  a  constitution"  or 
asking  them  to  ratify  it  when  formed.  Says  Dr.  Hinsdale:  — 

"The  act  did  not  contain  a  gleam  of  what  was  afterward  called  'popular 
sovereignty.'  The  Territorial  Legislature  was  wholly  ignored.  Neither  the  legis- 
lature nor  the  people  themselves  were  asked  to  pass  upon  the  question  of  entering 
into  a  State  government.  The  sole  function  of  the  electors  was  to  vote  for  mem- 
bers of  the  convention,  in  the  manner  prescribed  by  Congress."  4 

1  Congressional  Globe,  36th  Cong.  2d  Sess.  Pt.  I,  404,  405.     And  see  post,  299. 

2  Such  were  the  acts  relating  to   Kentucky,  Vermont,  and  Tennessee.     United 
States  Statutes  at  Large,  I,  189,  191,  and  491. 

3  Id.  II,  174,  sec.  5.  4  "The  Old  Northwest"  (New  York,  1888),  319. 


RATIFICATION    IN   THE   FEDERAL   GOVERNMENT         295 

This  rather  autocratic  measure  was  not,  however,  enacted  without 
opposition,  and  this,  naturally  enough,  came  from  New  England. 
In  the  course  of  the  debate  in  the  House,  Representative  Griswold 
of  Connecticut  said  :  — 

"  If  gentlemen  will  first  obtain  the  consent  of  the  Territory  in  a  proper  mode, 
though  their  population  does  not  amount  to  sixty  thousand,  I  will  consent  to  their 
admission  into  the  Union.  I  am  disposed  to  let  them  act  for  themselves  —  to 
divide  or  not  divide  the  Territory  into  states,  as  they  please;  but  I  am  against 
imposing  anything  upon  them  contrary  to  their  will.  They  are  more  deeply  in- 
terested than  we  are  in  the  establishment  of  a  proper  form  of  government.  They, 
and  not  we,  are  to  be  bound  by  it.  They,  then,  ought,  in  its  establishment,  to 
act  for  themselves,  and  not  we  for  them.  I  contend  that  such  a  measure  is  ex- 
traordinary in  this  country.  I  know  that  it  has  been  practiced  in  other  countries. 
I  know  that  in  Switzerland,  and  in  Holland,  the  people  were  told  by  the  Republic 
of  France  they  had  bad  Constitutions  which  required  alteration,  and  that  the 
Republic,  with  sisterly  kindness,  without  asking  their  consent,  imposed  conven- 
tions upon  them,  which  formed  for  them  entirely  new  systems  of  government: 
but  I  trust  the  same  thing  will  not  be  done  here."  x 

But  this  measure,  repugnant  as  it  was  to  the  growing  democratic 
sentiment  for  direct  popular  participation,  continued  to  be  the  model 
for  Congress  during  more  than  a  generation.  In  the  same  form  were 
passed  "enabling  acts"  for  the  territory  of  Orleans  (afterward  Louisi- 
ana)2 in  1811,  for  Indiana3  in  1816,  Mississippi4  in  1817,  Illinois5 
in  1818,  Alabama8  in  1819,  and  Missouri7  in  1820.  In  all  of  these 
enactments  the  convention  was  authorized  "to  form  for  the  people" 
a  constitution. 

As  in  the  case  of  the  earlier  states,  there  were  some  during  this 
period  which  framed  constitutions  in  advance  and  were  admitted 
without  further  direction  as  to  the  adoption  of  these.  Such  were 
Maine8  in  1820,  and  Michigan9  and  Arkansas10  in  1836.  The 
latter  was  the  last  to  be  admitted  without  a  popularly  ratified  consti- 
tution, or  a  requirement  thereof.  Iowa  and  Florida,  admitted  by  a 
single  act11  in  1845,  and  Texas  annexed  by  joint  resolution  later  in 
the  same  year,12  Wisconsin,  whose  "enabling  act"13  was  passed  in 
1846,  and  California14  in  1850,  all  submitted  their  first  constitutions 
to  the  people,  excepting  perhaps  Florida,  whose  instrument,  however, 

1  Annals  of  Congress  (Washington,  1851),  7th  Cong,  ist  Sess.  Column  1113. 

2  United  States  Statutes  at  Large,  II,  641. 

3  Id.  Ill,  289.  «  Id.  489.  9  Id.  V,  49-  u  Id.  797. 

4  Id.  348.  7  Id.  548.  10  Id.  50.  u  Id.  IX,  56. 
6  Id.  428.                      8  Id.  544.                      "  Id.  742.  14  Id.  452. 


296  THE   PEOPLE'S   LAW 

required  submission.  In  the  Wisconsin  act  of  1848  there  was  a 
slight  change  in  phraseology  in  that  uthe  people"  were  "authorized 
to  form  a  constitution  and  state  government."  l  But  it  was  not  until 
1857,  when  the  "enabling  act"  for  Minnesota  was  passed,  that  popu- 
lar ratification  was  expressly  required.  That  statute  authorized  the 
convention  to  "take  all  necessary  steps  for  the  establishment  of  the 
said  government  in  conformity  with  the  Federal  Constitution,  sub- 
ject to  the  approval  and  ratification  of  the  people  of  the  proposed 
state."  2  The  act  for  the  admission  of  Kansas  3  in  the  following 
year  prescribed  certain  questions4  for  submission,  and  all  "enabling 
acts"  passed  since  1857  have  required  that  the  constitution  of  the 
proposed  state  be  submitted  to  the  people.5  In  the  states  formed 
during  the  last  half  century,  therefore,  the  question  whether  their 
first  constitutions  ought  to  be  submitted,  could  not  have  arisen; 
it  was  determined  in  advance  by  the  same  authority  which  enabled 
them  to  become  states. 

During  the  reconstruction  period,  a  number  of  Southern  states 
endeavored  to  put  new  constitutions  in  force  without  a  reference  to 
the  people.  But  the  policy  of  requiring  popular  ratification  had  now 
become  firmly  established  on  the  part  of  the  Federal  government, 
and  these  unratified  reconstruction  instruments  were  invariably 
denied  recognition  by  Congress,  and  the  seceded  states  were  not  per- 
mitted to  resume  their  places  in  the  Union  until  constitutions  had 
been  framed  and  submitted  to  their  electors.  The  year  that  saw 
the  adoption  of  the  fifteenth  amendment  marked  also  the  apparently 
complete  triumph  of  popular  ratification,  both  in  state  and  Federal 
governments. 

Some  apparent  exceptions  to  this  policy  on  the  part  of  the  latter 
in  recent  years  may  be  accounted  for  by  reason  of  peculiar  conditions. 
In  dealing  with  Cuba  the  government  wisely  refrained  from  attempt- 
ing to  employ  the  plan  of  submission  to  a  people  schooled,  so  far 
as  they  were  schooled  at  all,  only  in  the  monarchical  traditions  of 
Latin  Europe.  Hence  the  order  of  the  military  government  of  July 

1  United  States  Statutes  at  Large,  IX,  56. 

2  Id.  XI,  1 66,  sec.  3.  8  Id.  269. 

4  These  were  provisions  of  an  ordinance  enacted  by  the  Lecompton  convention 
relating  to  land  and  taxation,  and  were  required  by  Congress  to  be  submitted  to  the 
people  as  a  condition  precedent  to  admission.  Greeley  ("  American  Conflict,"  I, 
250)  considers  this  a  resubmission  of  the  Lecompton  instrument. 

6  See  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  177. 


RATIFICATION   IN   THE   FEDERAL  GOVERNMENT         297 

25,  1900,  like  the  enabling  act  for  Ohio  nearly  a  century  previous, 
authorized  an  election  and  meeting  of  delegates  to  a  convention 
"  to  frame  and  adopt  a  constitution  for  the  people  of  Cuba"  and 
when  the  convention  assembled  the  military  governor  in  addressing 
it  said  :  "It  will  be  your  duty,  first,  to  frame  and  adopt  a  constitution 
for  Cuba."  1 

In  the  omnibus  enabling  act,2  relating  to  the  four  remaining  terri- 
tories of  the  Southwest,  Congress  has  shown  something  of  a  dispo- 
sition to  prescribe  in  part  the  subject-matter  of  constitutions  for  the 
proposed  states.  Thus  the  constitution  of  Oklahoma  was  required, 
inter  alia,  to  prohibit  the  liquor  traffic  in  the  former  Indian  Territory 
for  a  period  of  twenty-one  years  and  to  provide  a  system  of  free 
non-sectarian  schools  conducted  in  English.3  But  these  require- 
ments may  mostly  be  justified  by  considerations  of  public  policy  and 
peculiar  local  conditions,  —  such  as  the  existence  of  a  large  Indian 
population.4 

On  the  other  hand,  in  providing  for  the  admission  of  Arizona  and 
New  Mexico,  instead  of  arbitrarily  combining  them  into  one  state  as 
it  might  have  done  and  was  urged  to  do,  Congress  left  it  entirely  to 
the  electors  of  the  two  territories  to  say  whether  they  should  continue 
in  their  existing  status  or  enter  the  Union  as  one.5  This  was  a  privi- 
lege never  before  accorded  to  the  inhabitants  of  a  territory  and  it 
is  surely  significant  that  such  an  extension  of  the  doctrine  of  popular 
sovereignty  should  mark  the  closing  chapter  in  the  notable  history 
of  continental  state-making  in  America. 

C.   Miscellaneous  Measures 

Meanwhile  the  plan  of  appealing  to  the  people  was  being  tried 
by  Congress  in  other  measures  than  enabling  acts.  As  early  as  1843 
an  act 8  was  passed  authorizing  the  legislatures  of  certain  states  to 

1  Magoon,  "The  War  Department  Administration  of  Civil  Government,"  Scrib- 
ner's  Magazine,  XXXIV,  94. 

2  United  States  Statutes  at  Large,  XXXIV,  Pt.  I,  267. 

3  Id.  sec.  3. 

4  The  first-named  requirement  was  clearly  not  regarded  as  objectionable  since  a 
provision  for  "  state  wide  prohibition  "  as  a  part  of  the  constitution,  though  separately 
submitted,  was  adopted  by  an  overwhelming  majority. 

5  United  States  Statutes  at  Large,  XXXIV,  Pt.  I,  278,  sec.  24. 

6  Id.  V,  600. 


298  THE   PEOPLE'S   LAW 

provide  for  the  sale  of  lands  granted  by  the  Federal  government  for 
the  support  of  schools,  but  it  was  carefully  stipulated  that 

"  said  land,  or  any  part  thereof,  shall  in  no  wise  be  sold  without  the  consent  of 
the  inhabitants  of  such  township  or  district,1  to  be  obtained  in  such  manner  as 
the  Legislatures  of  said  States  shall  by  law  direct." 

Three  years  later  Congress  provided 2  for  the  retrocession  to 
Virginia  of  the  county  and  town  of  Alexandria  which  had  formed 
part  of  the  District  of  Columbia,  but  it  was  declared  therein 3 

"That  this  act  shall  not  be  in  force  until  after  the  assent  of  the  people  of  the 
county  and  town  of  Alexandria  shall  be  given  to  it." 

And  elaborate  provision  is  made  for  holding  an  election  to  decide 
the  question. 

The  anti-slavery  struggle  brought  some  significant  recognition 
of  the  referendum  principle,  mainly,  strange  to  say,  at  the  instance 
of  those  opposed  to  the  agitation.4 

The  famous  Kansas-Nebraska  bill  as  reported  to  Congress  in 
December,  1853,  provided5 

"  That  all  questions  pertaining  to  Slavery  in  the  Territories,  and  in  the  new 
states  to  be  formed  therefrom,  are  to  be  left  to  the  decision  of  the  people  residing 
therein,  through  their  appropriate  representatives." 6 

This  was  Senator  Douglas's  historic  doctrine  of  "squatter 
sovereignty,"  and  whatever  its  raison  d'etre,  it  marks  an  advance 

1  I.e.  in  which  schools  were  located. 

2  United  States  Statutes  at  Large,  IX,  35. 

3  Id.  sec.  4.     It  is  worthy  of  note  that  this  language  is  precisely  similar  to  that  used 
in  acts  which  were  held  void  as  an  attempted  delegation  of  legislative  power  in  Rice  v. 
Foster,  4  Harr.  (Del.)  492 ;  Parker  v.  Com.  6  Pa.  St.  507 ;  47  Am.  Dec.  480,  and  Barto 
v.  Himrod,  8  N.Y.  483,  and  that  by  the  Federal  Constitution  (Art.  I,  sec.  i)  "all 
legislative  powers"  are  vested  in  Congress.      The  question  seems  never  to  have  been 
raised,  however,  regarding  the  act  above  quoted. 

4  The  Republican  platforms  of  1856  (Greeley,  "The  American  Conflict,"  I,  247) 
and  1860  (Id.  320)  denied  the  "authority  of  Congress,  of  a  Territorial  Legislature,  or 
of  any  individuals  to  give  legal  existence  to  Slavery  in  any  Territory."    At  the  same 
time  the  platform  of  1856  asserted  Congress's  "sovereign  power  over  the  Territories" 
and  demanded  that  it  prohibit  therein  "those  twin  relics  of  barbarism,  Polygamy  and 
Slavery"  (Id.  247). 

6  Sec.  2(1).  See  Congressional  Globe,  XXVIII,  Pt.  I,  222;  Greeley,  "The 
American  Conflict,"  I,  228,  229. 

8  The  same  language  had  been  used  in  Douglas's  committee  report  for  which  the 
above  was  a  substitute.  United  States  Statutes  at  Large,  X,  289,  sec.  32 ;  Greeley, 
"The  American  Conflict,"  I,  250. 


RATIFICATION   IN   THE   FEDERAL  GOVERNMENT         299 

in  the  phraseology  of  congressional  measures.  As  passed  it  was 
declared  to  be 

"  the  true  intent  and  meaning  of  this  act  not  to  legislate  slavery  into  any  Territory 
or  State,  nor  to  exclude  it  therefrom,  but  to  leave  the  people  thereof  perfectly 
free  to  form  and  regulate  their  domestic  institutions  in  their  own  way,  subject 
only  to  the  Constitution." l 

On  the  very  eve  of  the  Civil  War,2  Senator  Crittenden  of  Kentucky 
offered  in  the  Senate  a  resolution,3 

"That  provision  ought  to  be  made  by  law  without  delay  for  taking  the  sense 
of  the  people  and  submitting  to  their  vote  the  following  resolutions 4  as  the  basis 
for  a  final  and  permanent  settlement  of  those  disputes  that  now  disturb  the  peace 
of  the  country  and  threaten  the  existence  of  the  Union." 

During  the  pendency  of  this  measure  Senator  Bigler  of  Pennsyl- 
vania introduced  an  auxilliary  bill,5  prescribing  the  mode  in  which 
the  " sense  of  the  people"  upon  the  proposed  amendments  should 
be  taken,  and  providing  that  it  should  be  in  the  same  manner 
and  by  the  same  officers  as  at  the  then  recent  presidential  elec- 
tion.6 In  the  course  of  the  prolonged  and  exhaustive  debate  on 
the  resolution  there  was  not  a  little  discussion  which  revealed  the 
advanced  position  of  certain  statesmen  of  the  period  as  regards 
the  referendum  principle.  Senator  Bigler  in  explaining  his  measure 
said :  — 

"It  is  not  an  attempt  to  interfere  with  the  rights  of  the  people  but  simply  to 
consult  the  power  which  made  the  Constitution  and  constitutes  this  body  and  the 
other  House,  —  the  people,  the  source  of  all  political  power.  The  proposition  is 
to  take  their  will  in  advance  of  any  action  here."  7 

Senator  Simmons  of  Rhode  Island  referred  to  the  remarks  of 
Senator  Mason  of  Virginia  as  follows :  — 

"He  said  he  was  against  letting  the  people  vote  on  these  resolutions.  His 
distinguished  ancestor  said  he  held  it  of  the  first  importance  that  this  Government 
should  rest  on  the  will  of  the  people.  ...  I  have  as  abiding  faith  in  them  now 
as  the  fathers  had  when  they  made  this  Constitution  and  how  did  they  come  out  ? 
Look  at  your  own  seventy  years'  experience  under  this  constitution.  Did  they 

1  United  States  Statutes  at  Large,  X,  289,  sec.  32. 

2  January  3,  1861. 

3  Congressional  Globe,  36th  Cong.  2d  Sess.  Pt.  I,  237. 

4  These  were  proposals  of  amendments  to  the  Federal  Constitution  embodying  a 
compromise  plan  for  the  settlement  of  the  slavery  question.     Id.  114. 

6  W.  351.  «  Id.  405.  »  Id>  352> 


300  THE  PEOPLE'S   LAW 

trust  the  people  in  vain  ?  .  .  .  If  I  read  these  resolutions  aright  these  amend- 
ments are  to  be  adopted  if  they  are  approved  of  by  the  people  of  three  fourths  of 
the  States."1 

The  resolutions  came  to  a  vote  and  were  rejected  by  a  majority 
of  one  2  a  little  more  than  a  month  preceding  the  bombardment  of 
Fort  Sumter.  What  a  chain  of  catastrophes  might  have  been 
averted  if  the  extremists  of  both  sections  could  have  been  persuaded 
to  accept  and  abide  by  the  simple  expedient  of  "  taking  the  sense  of 
the  people  "  ! 

1  Congressional  Globe,  36th  Cong.  2d  Sess.  Pt.  I,  405.  2  Id.  II,  1405. 


//.    RETROGRESSION 
CHAPTER  XX 

MISSISSIPPI 

POLITICAL  conditions  peculiar  to  the  South  are,  in  the  main, 
probably  responsible  for  a  movement  during  this  period  counter 
to  the  tendency  which  was  so  marked  in  the  preceding  one.  The 
adoption  of  the  fifteenth  amendment  to  the  Federal  Constitution, 
and  the  enfranchisement  of  the  negro,  were  met  by  various  devices 
tending  to  render  them  inoperative,  but  were  more  or  less  unsatis- 
factory to  their  authors.  The  opponents  of  negro  suffrage  finally 
adopted  the  plan  of  an  educational  or  hereditary  test,  incorporated 
into  the  state  constitution,1  but  so  framed  as  not  to  be  in  conflict  with 
the  reconstruction  amendments  to  the  Federal  Constitution.  To 
effect  this  it  was  necessary  to  change  the  existing  state  constitutions 
in  such  a  way  as  to  avoid  the  opposition  of  those  whose  electoral  privi- 
leges would  be  abridged  or  taken  away  thereby. 

A.    The  Movement  Initiated 

The  plan  was  first  inaugurated  in  Mississippi  and,  as  this  state 
is  the  pioneer  in  a  political  movement  of  far-reaching  importance 
generally,  and  of  direct  bearing  upon  the  subject  of  this  treatise,  we 

1  Two  classes  of  provisions  were  finally  devised:  (i)  The  "understanding  clause." 
This  required  the  voter  to  be  one  who,  in  the  opinion  of  the  election  officer,  "under- 
stands" the  constitution  when  read  to  him  or  reading  it  to  the  officer.  This  clause 
was  ultimately  adopted  in  Mississippi  (1890),  South  Carolina  (1895),  Alabama  (1900), 
and  Virginia  (1902).  (2)  The  "hereditary  clause."  This  provided  that  the  voter 
must  be,  or  descended  from,  one  entitled  to  vote  on  a  certain  date,  the  latter  being  fixed 
at  a  time  antedating  the  enfranchisement  of  the  Negro.  This  clause  was  ultimately 
adopted  in  Louisiana  (1898),  North  Carolina  (1900),  Alabama  (1901),  and  Virginia 
(1902).  See  Review  of  Reviews,  XXV,  716. 

301 


302  THE  PEOPLE'S   LAW 

will  be  justified  in  dwelling  at  some  length  on  its  constitutional  his- 
tory, and  especially  on  the  work  of  its  last  constitutional  convention. 

The  constitution  of  the  state,  adopted  in  1868,  provided  that  "no 
property  nor  educational  qualification  shall  ever  be  required  for  any 
person  to  become  an  elector,"  l  and  this  was  further  safeguarded  by 
a  clause  forbidding  any  change  in  the  foregoing  provision  prior  to 
i885.2  The  constitution  further  forbade  any  "change,  alteration 
or  amendment"  unless  proposed  by  the  legislature  and  submitted 
to  the  electors." 3  Nevertheless,  on  February  5,  1890,  the  legislature 
passed  an  act  calling  "  a  Convention  to  revise  and  amend  the  present 
Constitution  of  the  State  or  to  enact  [sic]  a  new  Constitution."  4 
The  act  provided  for  the  election  of  delegates  to  this  convention  by 
"all  persons  who  are  qualified  electors  under  the  present  Constitu- 
tion and  laws  of  this  State," 5  but  was  silent  as  to  the  plan  to  be  followed 
in  putting  the  constitution  into  force,  except  so  far  as  the  legislative 
intent  might  have  been  implied  from  the  use  of  the  word  "enact." 

The  convention  met  at  Jackson,  August  12,  1890.  On  Septem- 
ber 2,  Mr  Palmer  (Democrat)  "  introduced  an  ordinance  providing 
for  submitting  the  constitution  to  the  people  for  ratification  and 
moved  its  reference  to  a  special  committee  of  five,  which  motion 
was  lost." 6  The  proposed  ordinance  was  thereupon  laid  on  the  table 
subject  to  call,  but  on  the  same  day  United  States  Senator  George, 
who  was  one  of  the  delegates  to  the  convention  from  the  state  at 
large,  offered  the  following  resolution,  which  was  adopted  and  sent 
to  the  Judiciary  Committee :  — 

"Resolved,  That  the  Committee  on  the  Judiciary,  are  hereby  instructed  to 
inquire  into  the  Constitutional  power  of  the  Convention  to  adopt  finally,  on  behalf 
of  the  people  of  Mississippi,  the  Constitution  which  may  be  framed  by  them, 
without  a  submission  of  the  question  of  ratification  or  rejection  to  the  qualified 
electors  of  the  State,  and  that  they  report  their  conclusions  to  the  Convention."  7 

On  September  4,  Mr.  W.  P.  Harris  8  as  chairman,  and  in  behalf 
of  the  Judiciary  Committee,  reported,9  — 

1  Art.  I,  sec.  18;    Poore,  "Charters  and  Constitutions"  (Washington,  1877),  II, 
1082. 

2  Art.  XIII;  Poore,  II,  1094.       3  Id.       4  Laws  of  Mississippi  (1890),  53.        5  Id. 

6  Journal  of  the  Mississippi  Constitutional  Convention  (Jackson,  1890),  130. 

7  Id.  134- 

8  It  appears  from  the  roster  of  the  convention  that  Chairman  Harris  was  a  lawyer, 
a  member  of  the  Jackson  Bar,  and  was  at  the  time  seventy-one  years  old.     Of  the  twenty 
remaining  members  all  but  one  were  lawyers. 

9  Journal  of  the  Mississippi  Constitutional  Convention  (Jackson,  1890),  148,  149. 


MISSISSIPPI  303 

"That  the  proposition  that  the  work  of  a  Constitutional  Convention  in  revis- 
ing or  framing  a  Constitution  requires  for  its  validity,  a  ratification  by  a  vote  of 
the  people,  has  no  support  in  any  principle  of  constitutional  law,  and  is  merely 
a  political  theory  or  doctrine  which  has,  in  some  of  the  states,  acquired  authority 
from  usage.  .  .  .  The  opinions  of  political  theorists  on  the  question  of  the  sub- 
mission of  constitutions  for  popular  ratification  are  only  influential  as  advice  to 
the  Constitutional  Convention.  It  is  idle  to  invoke  them  as  propositions  of  Con- 
stitutional law. 

"  The  committee  therefore  express  the  opinion  with  confidence  that  the  Con- 
vention may  constitutionally  make  the  Constitution  or  amendments  which  it  shall 
adopt  absolute  and  final  without  submitting  the  question  of  ratification  or  rejec- 
tion to  the  qualified  voters  of  the  state. 

"W.P.HARRis, 

"Chairman." 

Although  this  appears  to  have  been  the  unanimous  report  of  the 
committee  it  seems  never  to  have  been  formally  called  up  and  acted 
upon.  It  was  not,  however,  permitted  to  pass  unchallenged.  On 
October  3,  Mr.  Holland  (Democrat)  offered  the  following  resolu- 
tion:— 

"Resolved,  That  the  President  appoint  a  committee  of whose  duty  it 

shall  be  to  prepare  an  ordinance  for  submitting  to  the  people  of  this  State,  at  an 
election  to  be  held  for  that  purpose,  the  Constitution  framed  by  this  Convention, 
for  ratification  or  rejection."  * 

This  resolution,  like  the  report  of  the  committee  just  noticed, 
was  "read  and  laid  (on)  the  table  subject  to  call,"2  but  appears  to 
have  received  no  further  consideration. 

On  October  22,  Mr.  Coffey  (Democrat)  proposed3  an  ordinance 
providing :  — 

"Sec.  i.  That  on  the day  of A.D.  18 —  an  election  shall  be 

held  in  the  several  counties  of  this  State  for  the  purpose  of  submitting  this  Con- 
stitution for  ratification  to  the  registered  voters  thereof,  in  such  manner  that  each 
elector  can  vote  separately  for  or  against  either  or  all  of  the  articles  therein  pro- 
posed. .  .  . 

"  Sec.  5.  If  it  shall  appear  that  a  majority  of  the  qualified  electors  voting  at 
said  election  shall  have  voted  for  either  of  the  several  articles  hereinbefore  enu- 
merated, they  shall  be  inserted  in  the  Constitution  of  this  State  and  be  a  part  thereof 
and  all  provisions  of  the  present  Constitution  in  conflict  therewith  shall  be  for- 
ever abrogated,  but  if  it  shall  appear  that  a  majority  of  the  qualified  electors  voting 
at  said  election,  shall  have  voted  against  either  of  said  several  articles  herein- 

1  Journal,  328.  >  Id.  *  Id.  455. 


304  THE   PEOPLE'S   LAW 

before  enumerated,  the  same  shall  be  void,  and  the  provisions  of  the  present 
Constitution  corresponding  shall  remain  in  force."  l 

This  proposed  ordinance  was  read,  ordered  printed,  and  referred 
to  the  Judiciary  Committee,  and  on  October  30  that  committee, 
through  Mr.  Harris,  its  chairman,  submitted  the  following  re- 
port : 2  — 

"Mr.  President:  The  Judiciary  Committee  have  considered  the  proposed 
ordinance  of  delegate  Mr.  Coffey,  for  the  submission  of  the  Constitution,  which 
may  be  adopted  by  this  Convention,  for  ratification  or  rejection,  to  the  people; 
and  instruct  me  to  report  that,  in  the  judgment  of  the  committee,  such  submis- 
sion is  unnecessary  and  inexpedient. 

"W.  P.  HARRIS, 

"  Chairman." 

No  direct  action  seems  to  have  been  taken  on  this  report. 


B.     The  Issue  Joined 

Finally,  on  October  31,  the  question  was  brought  to  an  issue  by 
the  following  resolution  offered  by  Mr.  Burkitt  (Democrat) :  — 

"BE  IT  RESOLVED,  That  the  Constitution  framed  by  this  Convention  be 
submitted  to  the  people  for  ratification  or  rejection  at  the  election  to  be  held  on 
Tuesday  after  the  first  Monday  in  November,  1891."  3 

Mr.  Dillard  (Democrat)  moved  to  lay  this  resolution  on  the  table, 
and  the  ayes  and  noes  being  called,  the  motion  to  lay  on  the  table  was 
adopted  by  a  vote  of  eighty  to  twenty-six,  there  being,  however, 
twenty-seven  members  absent  or  not  voting.4 


C.     "Enactment"  of  the  Constitution 

Meanwhile,  on  October  22,  Mr.  Witherspoon,  for  the  committee 
on  Preamble,  of  which  he  was  chairman,  had  submitted  the  following 
report :  — 

"Your  Committee  on  Preambles  have  had  under  consideration  the  various 
ones  referred  to  it,  and  report  the  following  for  the  new  Constitution : 

' '  We  the  people  of  Mississippi,  in  Convention  assembled,  grateful  to  Almighty 

1  Journal  of  the  Mississippi  Constitutional  Convention  (Jackson,  1890),  550,  551. 
The  text  of  this  resolution  is  printed  in  the  Journal  out  of  its  regular  place  and  in  con- 
nection with  the  report  of  the  Judiciary  Committee  thereon. 

2  Id.  549,  550.  3  Id  567.  4  Id>  567)  568> 


MISSISSIPPI  305 

God,  and  invoking  His  blessing  on  our  work,  do  ordain  and  establish  this  Con- 
stitution for  the  better  government  of  the  State.'  " l 

On  November  i,  Mr.  Taylor  (Democrat)  moved  that  the  instru- 
ment reported  by  the  sub-committee  on  revision,  as  amended,  "be 
adopted  as  the  constitution  of  the  state  of  Mississippi,"  and  on  this 
motion  the  vote  was  one  hundred  and  four  in  the  affirmative  and 
eight  in  the  negative,  with  twenty-one  members  absent  and  not  voting.2 
On  the  same  day  the  convention  adjourned  and  no  further  steps 
were  taken  toward  securing  popular  ratification. 


D.     The  Procedure  Tested  in  the  Courts 

It  was  hardly  to  be  expected  that  the  regularity  of  this  procedure 
would  be  accepted  without  challenge.  It  was  first  assailed  in  an 
election  contest  which  involved  the  validity  of  certain  clauses  in  this 
constitution  of  1890,  relative  to  the  qualification  of  electors.  The 
contestee  urged  the  invalidity  of  these  provisions  on  the  ground, 
inter  alia,  that  the  instrument  of  which  they  formed  a  part  had  never 
been  ratified  by  the  people.  The  court  "with  confidence"  rejected 
the  proposition  as  "unsound."3 

The  electoral  provisions  of  the  constitution  were  afterward  brought 
in  question  before  the  Federal  Supreme  Court,4  on  the  ground  that 
they  discriminated  against  the  negro  race.  But  the  validity  of  the 
instrument  was  again  affirmed  on  the  ground  that  no  such  discrimi- 
nation appeared  on  the  face  of  its  provisions,  and  that "  it  had  not  been 

1  Journal,  456-  2  Id.  637,  638. 

3  Sproule  v.  Fredericks,  69  Miss.  898;  Thayer's  Cases,  I,  250  (1895).     "It  will  be 
remembered,"  says  the  Court,  "that  the  case  at  bar  is  free  from  the  difficulties  which  are 
supposed  by  some  writers  to  arise  out  of  a  failure  or  refusal  of  a  constitutional  conven- 
tion to  yield  to  the  direction  of  the  legislature  which  summoned  it  that  the  constitution 
framed  shall  be  submitted  to  the  people  for  ratification.     The  act  of  the  legislature 
which  provided  for  the  assembling  of  the  constitutional  convention  of  1890,  declared 
that  the  end  sought  to  be  attained,  the  work  to  be  done,  was  the  revision  and  amendment 
of  the  constitution  of  1869,  or  the  enactment  of  a  new  constitution;  and  it  did  not  at- 
tempt to  limit  the  powers  of  the  convention  by  imposing,  or  seeking  to  impose,  upon 
that  sovereign  tribunal  the  mere  legislative  will  that  the  constitution  enacted  should 
be  submitted  to  the  people  for  ratification.    We  have  simply  the  case  of  a  constitutional 
convention  enacting  a  new  constitution,  and  putting  it  into  effect  without  an  appeal  to 
the  people  in  strict  conformity  to  the  legislative  call  which  assembled  it."     See  this 
case  reaffirmed  in  Dixon  v.  State,  74  Miss.  277. 

4  Williams  v.  Mississippi,  170  U.S.  213  (1898). 

x 


306  THE  PEOPLE'S  LAW 

shown  that  their  administration  was  evil ;  only  that  evil  was  possible 
under  them."  1 

1  It  was  also  observed :  — 

"The  operation  of  the  constitution  and  laws  is  not  limited  by  their  language  or 
effects  to  one  race.  They  reach  weak  and  vicious  white  men  as  well  as  weak  and  vicious 
black  men,  and  whatever  is  sinister  in  their  intention,  if  anything,  can  be  prevented 
by  both  races  by  the  exertion  of  that  duty  which  voluntarily  pays  taxes  and  refrains 
from  crime.  .  .  .  There  is  an  allegation  of  the  purpose  of  the  convention  to  disfran- 
chise citizens  of  the  colored  race,  but  with  this  we  have  no  concern,  unless  the  purpose 
is  executed  by  the  constitution  or  laws  or  by  those  who  administer  them.  If  it  is  done 
in  the  latter  way,  how,  or  by  what  means,  should  be  shown." 


CHAPTER  XXI 

SOUTH  CAROLINA 

A.    Preliminary  Steps 

THE  next  step  in  the  movement  was  taken  in  South  Carolina. 
On  December  19,  1892,  the  legislature  adopted  a  joint  resolution 
providing  for  the  submission  to  the  people  of  the  question  of  calling 
a  constitutional  convention.1  This,  it  will  be  seen,  was  a  step  which 
had  been  omitted  in  Mississippi,  and  shows  less  of  a  disposition  to 
ignore  settled  constitutional  methods.  The  plebiscitum  was  taken 
at  the  election  of  1893,  an(i  tne  proposition  carried ;  and  pursuant 
to  these  proceedings,  the  legislature  on  December  24,  1894,  passed 
an  act  providing:  — 

"That  a  Convention  of  the  people  of  South  Carolina  is  hereby  ordained  to 
be  assembled  in  the  city  of  Columbia  on  the  second  Tuesday  in  September  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-five,  for  the  purpose 
of  revising,  amending  or  changing  the  Constitution  of  the  State."  * 

Here  also,  it  will  be  seen,  the  legislature  was  more  cautious  than 
that  of  Mississippi.  It  did  not  expressly  authorize  the  convention 
to  "enact"  a  constitution  but  seems  to  have  left  open  the  question 
whether  it  actually  intended  to  transfer  the  seat  of  sovereignty  to 
that  body. 

B.     Obstruction  Attempted  in  the  Courts 

The  election  of  delegates  was  fixed  for  the  third  Tuesday  in  August, 
1895.  Prior  to  that  time,  the  appeal  to  the  courts,  which  in  Mississippi 
had  followed  the  proclamation,  was  taken.  Lawrence  P.  Mills,  a 
negro,  brought  a  bill  in  equity  in  the  Circuit  Court  of  the  United 
States  for  the  district  of  South  Carolina,  asking  that  a  supervisor  of 

1  South  Carolina  Laws  (1892),  6.  2  Id.  (1894),  803. 

307 


308  THE  PEOPLE'S   LAW 

election  be  enjoined  from  carrying  into  effect  the  state  registration 
laws  and  alleging  that 

"  He  failed  to  register  at  the  registration  made  after  the  general  election  of 
1888,  and  during  the  days  in  March,  1895,  provided  for  in  the  act  of  1894,  be- 
cause, although  he  made  repeated  and  persistent  efforts  to  become  registered,  he 
found  himself  unable  to  comply  with  the  unreasonable,  unnecessary,  and  bur- 
densome rules,  regulations,  and  restrictions  prescribed  by  said  unconstitutional 
registration  laws  as  conditions  precedent  to  his  right  to  register,  and  that  he  had 
never  been  allowed  to  vote  at  any  Federal  or  state  election  of  the  state  of  South 
Carolina ;  that  he  is  desirous  of  voting  for  delegates  to  the  said  constitutional  con- 
vention, and  that  the  paper  writings  purporting  to  be  books  of  registration,  now  in 
the  hands  of  the  defendant,  do  not  and  will  not  contain  his  name  as  a  registered 
voter  for  the  reason  before  stated ;  that  he  and  others  like  circumstanced  with  him 
will  not  be  permitted  to  vote  at  said  special  election  by  the  managers  thereof 
unless  their  names  be  found  upon  the  books  of  registration,  and  they  produce  the 
registration  certificate  mentioned :  and  that,  if  the  defendant  be  permitted  to  con- 
tinue the  aforesaid  illegal,  partial,  and  void  registration,  and  be  allowed  to  turn 
over  to  the  managers  of  such  election  for  the  county  of  Richland  the  books  of 
registration  for  said  county,  he,  the  plaintiff,  will  be  deprived  of  his  right  to  vote 
at  said  election,  and  grievous  and  irreparable  wrong  and  damage  will  be  done 
him,  which  can  only  be  prevented  by  the  interposition  of  this  court,  by  way  of 
restraining  the  defendant  from  the  performance  of  said  before  mentioned  acts." 1 

The  Circuit  Court,  per  Judge  Goff  ,2  granted  a  preliminary  injunc- 
tion on  the  ground  that  the  registration  laws,  including  those  availed 
of  by  the  convention  act,  were  in  conflict  with  the  fourteenth  and 
fifteenth  amendments  to  the  Federal  Constitution.  The  case  was 
thence  taken  to  the  Court  of  Appeals,3  where  the  order  of  injunction 
was  reversed  and  the  bill  dismissed  on  the  ground  that 

"  The  action  sought  to  be  enjoined  is  political  and  governmental,  and  it  is 
not  pretended  that  any  right  of  property  or  civil  right  is  threatened  with  in- 
fringement thereby."  4 

Another  appeal  was  then  taken,  this  time  to  the  Federal  Supreme 
Court.5  Meanwhile,  however,  the  election  of  delegates  had  taken 

1  Mills  v.  Green,  67  Fed.  Rep.  818. 

8  "  It  is  evident,"  he  says,  "  that  the  effect  of  this  registration  system  is  to  fearfully  im- 
pede the  exercise  of  the  right  of  suffrage  by  the  colored  voters  of  the  state  of  South  Caro- 
lina. It  to  a  great  extent,  defeats  their  constitutional  right  to  vote,  and  it  seems  to  be  its 
leading,  —  I  must  be  permitted  to  say,  its  only,  —  object,  the  effect  being  to  so  legis- 
late as  to  apparently  respect  constitutional  requirements,  but  at  the  same  time  to  stab 
to  the  death  the  rights  and  immunities  guaranteed  by  them."  —  Mills  v.  Green,  67 
Fed.  Rep.  832. 

3  Mills  v.  Green,  25  U.S.  App.  383. 

4  Per  Chief  Justice  Fuller,  Id.  398.  8  Mills  v.  Green,   159  U.S.  651. 


SOUTH   CAROLINA  309 

place  and  the  convention  had  assembled.  The  Supreme  Court  held 
that  this  left  no  actual  controversy  but  only  an  abstract  question  to 
be  determined  and  that,  as  it  could  grant  no  actual  relief,  it  would 
dismiss  the  bill.1 

This  appears  to  have  ended  the  attack  on  the  new  constitution 
through  the  courts.2 

C.     The  Convention 

met  at  the  time  and  place  appointed.  It  numbered  160  members, 
but  a  keen  critic  of  it  observes :  — 

"There  was  a  dearth  of  lawyers  or  others  who  had  made  any  study  of  the 
proper  field  of  a  constitutional  convention."  3 

Mr.  Robert  Aldrich  was  elected  temporary  chairman  and  in  his 
opening  speech  he  declared  that 

"With  the  exception  of  the  constitution  of  1790,  the  one  now  to  be  framed 
is  the  only  one  that  is  entitled  to  be  called  the  exponent  of  the  untrammelled  will 
of  the  people  of  South  Carolina."  * 

As  we  shall  see,  this  idea  appears  to  have  been  so  prevalent  at  the 
close  of  the  convention  as  to  make  submission  seem  unnecessary. 

The  question  uppermost  in  the  minds  of  the  delegates  was,  of 
course,  the  suffrage  problem,  and  this  occupied  the  major  part  of 
their  attention.  Nevertheless  the  work  of  the  convention  extended 
far  into  the  field  of  general  legislation,  and  on  this  account  it  has  been 
much  criticised. 

"One  of  the  most  noticeable  features  of  this  convention  and  its  work,"  says 
Mr.  Eaton,  "  is  the  want  of  knowledge  shown  of  the  proper  sphere  of  a  constitu- 
tion and  of  the  difference  between  what  should  be  put  into  the  constitution  and 
what  should  be  left  for  the  legislature  to  enact  as  statutes.  No  one  seems  to  have 
pointed  out  that  a  constitution  should  contain  only  the  great  fundamentals  of 

1  "  It  is  obvious,  therefore,  that,  even  if  the  bill  could  properly  be  held  to  present 
a  case  within  the  jurisdiction  of  the  Circuit  Court,  no  relief  within  the  scope  of  the  bill 
could  now  be  granted."  — Mills  v.  Green,  159  U.S.  658. 

2  See,  however,  Wiley  v.  Sinkler,  179  U.S.  58,  which  was  an  action  against  a  Charles- 
ton Election  Board  to  recover  damages  for  rejecting  plaintiff's  vote  for  a  member  of 
Congress.     The  Supreme  Court  held  that  the  Circuit  Court  had  jurisdiction,  but 
affirmed  its  judgment  of  dismissal  on  the  ground  that  plaintiff  had  failed  to  allege  that 
he  was  a  registered  voter  under  the  South  Carolina  laws.     The  court  expressly  dis- 
claimed any  intention  of  passing  on  trie  validity  of  the  convention's  acts. 

3  Eaton,   "The  Late  Constitutional  Convention  of  South  Carolina,"  American 
Law  Review,  XXXI,  199.     Cf.  210.  4  Id.  198. 


310  THE   PEOPLE'S   LAW 

the  organic  law,  leaving  the  details  of  law-making  to  the  legislature.  The  mem- 
bers of  this  convention  failed  to  grasp  this  principle  and  therefore  their  work  in- 
cluded too  much  law-making.  It  was  even  moved  by  one  member '  that  there  shall 
be  no  session  of  the  legislature  this  year,  but  the  convention  shall  do  its  work  in  its 
place.'  It  would  have  been  but  a  step  further  for  the  convention  to  continue 
indefinitely  in  session  and  to  carry  on  the  government  of  the  state."  * 

Whether  there  was  any  considerable  sentiment  in  the  convention 
favorable  to  submitting  the  new  instrument  to  the  people  seems 
difficult  now  to  determine  with  certainty.  "  Unfortunately  the  con- 
vention voted  that  no  official  stenographic  report  of  their  proceedings 
should  be  taken,  and  we  are  therefore  deprived  of  the  assistance 
such  a  report  would  furnish."  2 

It  seems  probable,  however,  that,  in  view  of  the  then  recent  action 
in  Mississippi  and  of  the  avowed  purpose  of  the  convention,  no 
such  plan  was  seriously  considered.  The  labors  of  the  convention 
were  concluded  on  December  4,  1895,  and  on  the  last  day  of  the 
same  month  the  new  instrument  became  operative  according  to  its 
terms. 

1  Eaton,  "The  Late  Constitutional  Convention  of    South  Carolina,"  American 
Law  Review,  XXXI,  210. 
3  Id.  203. 


CHAPTER  XXII 
DELAWARE 

THE  next  constitution  to  be  adopted  without  popular  ratification 
was  that  of  Delaware.  We  have  seen  how  the  movement  to  supplant 
the  state's  obsolete  constitution  of  1831  was  defeated  by  the  electors 
of  I853.1  For  a  generation  afterward  the  people  of  that  state  appear 
to  have  continued  under  the  old  instrument  without  further  effort 
to  displace  it.  The  existing  constitution  made  it  necessary  to  submit 
the  question  of  calling  a  new  convention  to  the  people  at  a  special 
election.  Under  this  hampering  restriction,  repeated  efforts  were 
made  to  obtain  the  required  majority  for  a  new  convention.  The 
question  was  submitted  in  1887,  and  again  in  1891,  and  although 
the  results  of  the  last  attempt  show  a  growth  of  sentiment  in  favor 
of  the  proposal,  the  number  was  still  insufficient.2  Finally  the  legis- 
lature exercised  the  prerogative  confided  to  it  by  the  existing  constitu- 
tion of  adopting  amendments  by  a  two-thirds  vote  of  one  legislature 
and  a  three-fourths  vote  of  its  successor  and  the  time  of  submitting 
the  question  was  thus  changed  from  a  special  to  a  general  election.3 
By  making  this  change  the  proposal  was  brought  before  the  electors 
at  a  time  when  there  was  more  to  call  them  to  the  polls  and  this  time 
the  attempt  was  successful  and  the  proposition  was  adopted.  The 
legislature,  at  its  ensuing  session,  passed  the  constituent  act  and  at 
the  same  time  declared  that 

"  In  the  opinion  of  this  Legislature  the  constitution  framed  by  the  Conven- 
tion hereinbefore  provided  for  should  be  submitted  for  the  approval  of  the  legal 
voters  of  this  State." 4 

This  opinion,  however,  did  not  seem  to  have  weight  with  the  conven- 
tion, for,  when  that  body  met  at  Dover  City  in  1897,  it  proceeded 

1  Ante,  249. 

2  Oberholtzer,  "The  Referendum  in  America"  (2d  Ed.,  New  York,  1900),  135. 

3  Delaware  Session  Laws  (1893),  540.  4  Id.  (1895),  234,  sec.  8. 

3" 


312  THE   PEOPLE'S   LAW 

to  frame  a  new  instrument  which,  without  other  formality,  it  declared 
should  "take  effect"  on  June  10  of  the  year  last  named.1 

The  reason  for  this  course  could  hardly  have  been  the  same  as 
in  the  states  of  the  far  South.2  While  the  convention  made  some 
important  changes  in  suffrage  qualifications,  notably  in  requiring 
an  elector  to  be  able  to  "read  this  constitution  in  the  English  lan- 
guage and  write  his  name,"  3  still  this  alone  does  not  seem  to  have 
occasioned  a  fear  that  it  would  prevent  the  adoption  of  the  instru- 
ment. The  difficulties  attending  the  plebiscita,  which  had  preceded 
the  convention,  afforded  no  doubt  a  practical  consideration  which 
influenced  the  delegates  and  led  them  to  think  that  the  surest  policy 
was  to  proclaim  the  instrument.  Another  reason  for  this  action  was 
probably  an  historic  one.  Delaware  had  lain  largely  outside  of  the 
path  of  the  great  movement  for  popular  ratification  which  had 
swept  through  the  adjoining  states  before  the  middle  of  the  nine- 
teenth century.  None  of  its  three  previous  constitutions  had  been 
submitted  to  the  electors.  It  is  true  that  a  proposed  instrument 
had  once  been  submitted  to  the  electors,  but  the  people  of  Delaware 
had  never  actually  lived  under  a  popularly  adopted  constitution.  And 
not  only  did  the  convention  of  1897  itse^  proclaim  the  instrument 
which  it  framed  as  the  constitution  of  the  state,  but  it  also  retained 
that  feature  of  the  instrument  of  1831  which  permitted  two  successive 
legislatures  to  adopt  constitutional  amendments  and  reduced  the 
required  vote  to  two-thirds.4  Another  clause  provided,  however, 
for  the  calling  of  a  constitutional  convention  by  a  majority  of  the 
electors  voting  on  the  question  at  the  next  general  election  after  sub- 
mission,5 but  no  provision  was  inserted  requiring  future  proposed 
constitutions  to  be  submitted.  A  different  spirit  has  since  been 
shown  by  providing  for  the  adoption  of  the  advisory  initiative  and 
referendum  as  to  ordinary  legislation  and  the  submission  of  questions 
to  a  direct  vote  of  the  people.6 

1  Delaware  Constitution  (1897),  Art.  V,  sec.  2  (published  by  the  Secretary  of  State, 
Wilmington). 

2  Mr.  Oberholtzer  ("  Referendum  in  America,"  122)  quotes  a  prominent  Delaware 
lawyer,  "who  informed  him  that  the  'constitution  was  not  submitted  to  popular  vote 
because  it  was  felt  that  the  delegates  who  were  elected  for  this  purpose  knew  more  about 
making  constitutions  than  the  people  did.' " 

3  Delaware  Constitution  (1897),  Art.  V,  sec.  2  (published  by  the  Secretary  of  State, 
Wilmington). 

4  Id.  sec.  i.  '  Id.  sec.  2.  6  See  post,  Chap.  XXIX. 


CHAPTER  XXIII 
LOUISIANA 

THE  state  of  Louisiana  followed  the  lead  of  Mississippi  in  dealing 
with  the  suffrage  problem  through  a  constitutional  convention.  The 
history  of  these  two  commonwealths  with  respect  to  their  constitu- 
tions had  not  been  greatly  dissimilar.  Of  the  seven  constitutional 
conventions  of  Louisiana  all  but  two  submitted  their  work  to  the 
judgment  of  the  electors.1  The  first  constitution  of  the  state,  framed 
in  1812,  was  not  submitted  and  the  secession  convention  of  1861 
declared  certain  constitutional  amendments  to  be  in  force  without 
the  formality  of  submission.2  But  constitutions  had  been  adopted 
by  a  popular  vote  in  1845,  I^52,  i864,3  1868,  and  1879,*  and  of  the 
last  it  had  been  judicially  declared  that  it  "was  not  operative  from 
the  date  of  its  adoption  by  the  convention  but  only  from  its  ratifica- 
tion by  the  people  as  evidenced  by  the  promulgation  of  the  result 
of  the  election."  5  Thus  the  weight  of  precedent  in  Louisiana  was 
clearly  in  favor  of  the  practice  of  popular  ratification. 

A.     The  Movement  for  a  New  Constitution 

i.     Origin  and  purpose 

The  conditions  under  which  the  latest  and  existing  constitution 
of  Louisiana  was  put  into  force  are  described,  as  viewed  from  oppo- 
site standpoints,  in  two  contemporary  papers.  One  is  a  critique 
on  the  work  of  the  convention  by  Mr.  Amasa  M.  Eaton,  an  eminent 

1  Jameson,  "Constitutional  Conventions,"  650,  651. 

2  Id.     Cf.  sec.  247  of  the  same  work. 

3  This  was  a  reconstruction  constitution,  and,  though  ratified  by  the  voters,  the 
government  organized  thereunder  was  declared  illegal  by  subsequent  acts  of  Congress. 
Jameson,  "  Constitutional  Conventions,"  650,  651. 

*  Id.  651. 

5  State  ex  rel.  Reufner  v.  Mayor  of  Morgan  City,  32  La.  Ann.  81  (1880). 


314  THE  PEOPLE'S   LAW 

writer  and  specialist  in  this  field;  the  other  is  a  special  message 
from  the  then  governor  of  Louisiana,  the  Hon.  Murphy  J.  Foster, 
to  the  legislature  which  passed  the  act  providing  for  the  convention. 
In  order  that  the  diverse  views  concerning  the  work  of  this  body 
may  be  fairly  presented,  these  two  documents  will  be  referred  to 
in  eoctenso. 

Mr.  Eaton  says :  — 

"  The  long  continued  domination  of  one  political  party  in  Louisiana  led  there, 
as  it  has  elsewhere,  to  abuse  of  power  and  fraud.  The  faction  in  power  resorted 
to  whatever  means  became  necessary  to  keep  the  negroes  from  exercising  the 
political  power  that  was  theirs,  had  they  been  well  organized.  Fraud  upon  the 
negroes  naturally  led  to  fraud  upon  members  of  any  opposing  faction,  even  if 
nominally  of  the  same  party.  New  political  combinations  resulted,  of  populists, 
protectionists,  and  opponents  of  election  frauds.  It  is  said  that  they  were  actually 
in  the  majority  but  the  so-called  Democrats  being  in  possession  of  the  machinery 
of  political  power,  managed  to  retain  it.  This  led  to  a  cry  for  a  Constitutional 
Convention  to  form  a  new  Constitution  by  which  the  political  power  of  the  negroes 
could  be  fettered.  The  problem  was  to  get  a  new  Constitution  that  would  eliminate 
much  more  than  half  the  vote  of  the  citizens,  and  yet  that  would  not  be  defeated 
if  submitted  to  the  voters  of  the  State,  including  those  who  would  be  disfranchised 
under  it.  On  the  other  hand,  if  a  call  were  issued  for  a  Convention  with  full 
powers  to  frame  a  new  Constitution,  the  party  in  power  without  the  approval  of 
a  majority  of  the  voters,  would  certainly  oppose  the  calling  of  a  Convention,  as 
one  of  its  first  acts  would  be  the  abolition  of  the  existing  administration.  The 
difficulty  was  skilfully  solved  by  drawing  up  and  passing  an  act  to  be  submitted 
to  the  voters,  calling  for  a  Convention,  but  with  limited  powers,  and  providing  also 
that  the  new  Constitution  should  go  into  effect  without  the  approval  of  the  elec- 
tors." x 

Governor  Foster's  message  was,  in  part,  as  follows :  — 

"  The  present  Constitution,  which  has  now  been  in  force  for  nearly  seventeen 
years,  contains  many  admirable  provisions.  In  some  respects,  however,  it  has 
been  found  to  be  deficient  in  its  active  operation.  Chief  among  these  defects 
experience  has  shown  that  the  qualifications  for  suffrage,  as  at  present  established, 
are  such  as  to  extend  the  elective  franchise  to  a  large  mass  of  ignorance  and  ve- 
nality, to  the  great  detriment  of  the  best  interests  of  the  commonwealth.  While 
most  of  the  other  States  of  the  American  Union  have  made  substantial  progress 
and  improvement  in  this  respect,  by  imposing  in  their  organic  laws  reasonable 
and  proper  limitations  upon  the  exercise  of  the  elective  franchise,  whereby  the 
grossly  ignorant  and  incompetent  have  been  eliminated  and  excluded  from  the 
electorate,  Louisiana  has  continued  to  suffer  from  this  evil.  This  has  grown  so 
significant  in  recent  years  that  the  popular  mind  is  now  thoroughly  possessed 

1  Eaton,  "The  Suffrage  Clause  in  the  New  Constitution  of  Louisiana,"  Harvard 
Law  Review,  279. 


LOUISIANA  315 

with  the  idea  that  its  longer  continuance  is  a  standing  menace  to  free  government 
and  civil  liberty  within  its  borders.  Mindful  of  this  great  political  exigency  your 
predecessors  in  the  last  General  Assembly,  among  other  amendments  to  the  present 
Constitution,  passed  and  submitted  to  the  voters  of  the  State  at  the  last  election 
one  looking  to  the  limitation  of  suffrage  to  such  citizens  as  could  read  the  Constitu- 
tion in  their  mother  tongue,  or  in  default  of  such  knowledge,  to  tax-payers  on 
property  to  the  amount  of  two  hundred  dollars.  Unfortunately  the  submission 
of  this  proposed  amendment,  with  the  others,  was,  under  the  provisions  of  the 
Constitution,  made  at  the  same  time  with  the  general  election  for  State,  parochial 
and  municipal  officers.  In  this  way  the  fate  of  this  beneficent  measure  became 
involved  with  local  and  partisan  questions,  as  well  as  individual  ambitions  and 
struggles  for  office,  in  such  a  manner  as  to  eventually  insure  its  defeat.  I  believe, 
in  common  with  a  large  portion  of  the  people,  that  if  the  submission  of  the  question 
had  not  been  so  handicapped  by  extraneous  circumstances,  and  had  it  been 
decided  on  its  individual  merits  alone,  it  would  have  been  ratified  and  adopted 
by  a  large  majority  of  the  electors. 

Be  that  as  it  may,  however,  the  fact  cannot  now  be  disguised  or  ignored  that 
there  is  a  large  and  growing  sentiment  in  the  State  as  to  the  paramount  and 
immediate  necessity  for  some  change  in  this  respect.  I  deem  it  unnecessary  to 
argue  here  its  importance  and  necessity,  as,  in  my  opinion,  the  great  body  of  the 
people  regard  it  as  a  self-evident  proposition.  There  are  other  amendments  and 
changes  which  may  be  made  in  the  Constitution,  to  the  great  advantage  of  the 
people  and  the  State,  but  the  question  of  limitation  of  suffrage,  to  my  mind  at 
least,  overshadows  all  others  in  importance."  ] 

2.     In  Hie  Legislature 

The  General  Assembly  of  the  state  of  Louisiana  convened  in 
regular  session  at  Baton  Rouge  on  May  n,  1896.  On  June  18, 
Mr.  Trezevant,  of  Shreveport,  introduced  into  the  House  of  Repre- 
sentatives a  bill  with  the  following  title :  — 

"  An  act  Providing  for  the  submission  to  the  people  of  a  proposition  to  hold 
a  convention  at  a  designated  time  and  place  for  the  purpose  of  framing  and 
putting  into  effect  a  new  Constitution;  to  fix  the  powers  of  the  said  convention; 
to  provide  for  the  election  of  delegates  thereto;  and  to  make  an  appropriation 
to  defray  the  expenses  thereof."  2 

The  progress  of  the  measure  seems  to  have  been  facilitated  by  the 
message  of  the  governor  already  alluded  to,  and  on  June  24  it  was 
considered  in  committee  of  the  whole,  favorably  reported,  and  the 
report  adopted.3  The  Journal  is  silent  concerning  the  debate  on 
this,  as  well  as  the  other  measures  pending  before  the  body,  but  on 

1  Journal  of  the  House  of  Representatives  of  Louisiana  (1896),  363. 

2  Id.  286.  3  Id.  393. 


3l6  THE   PEOPLE'S   LAW 

the  following  day  when  the  bill  came  up  for  final  passage,  there  were 
significant  speeches  by  certain  of  the  members  in  explanation  of 
their  votes.  Mr.  Stewart  (Populist),  from  Pollock,  said:  — 

Mr.  Speaker:  Knowing  that  the  people  that  I  represent  are  not  in  favor  of 
a  convention  with  limited  powers  and  believing  that  it  is  a  step  in  the  direction 
of  taking  the  government  of  this  state  out  of  the  hands  of  the  masses  and  putting 
it  in  the  hands  of  the  classes,  and  believing  that  this  should  be  a  government  of 
the  people,  for  the  people  and  by  the  people,  I  therefore  vote  '  no.'  " l 

Mr.  Gunby  (Populist),  from  Union,  said:  — 

"  I  vote  '  no '  on  this  bill  for  the  reason  that  I  consider  a  proposition  to  limit  a 
Constitutional  Convention  to  act  only  on  such  measures  as  the  majority  of  the 
legislature  want  passed  upon  as  an  insult  to  the  patriotism  and  intelligence  of 
the  people  of  this  state,  and  for  the  further  reason  that  I  promised  the  people 
whom  I  represent  that  I  would  not  vote  for  a  measure  which  I  knew  they  did 
not  want,  and  I  think  that  promises  and  pledges  should  be  kept  sacred.  I  am 
in  favor  of  an  unlimited  Constitutional  Convention,  and  no  other  kind." 2 

Mr.  James  (Populist),  from  Winn  said:  — 

"This  call  for  a  Constitutional  Convention  limits  the  work  of  such  conven- 
tion, except  as  to  unimportant  details,  to  a  revision  of  the  suffrage,  the  basis  of 
all  republican  forms  of  government.  Such  convention  is  given  unlimited  power 
to  deal  with  this  fundamental  question  and  its  work  becomes  the  constitutional 
law  of  the  State  without  reference  to  the  people.  The  delegates  composing  this 
convention  are  to  be  elected  by  an  electoral  system  or  machine  that  is  so  completely 
in  the  hands  of  the  so-called  Governor  of  this  State  that  the  result  will  be  the  same 
as  if  the  said  so-called  Governor  appointed  a  majority  of  said  delegates. 

"  Under  such  provisions  and  conditions  this  call  differs  from  the  late  lamented 
'suffrage  amendment'  only  that  it  is  eighty  thousand  dollars  ($80,000)  more 
expensive  to  the  tax-payers  of  this  state. 

"  This  call  for  a  Constitutional  Convention  should,  therefore,  meet  with  the 
same  fate  as  the  aforesaid  'Suffrage  Amendment'  which  was  buried  with  an 
avalanche  of  votes  so  deep  that  it  has  not  since  been  heard  from.  I  therefore 
vote  'no.'"3 

The  bill  finally  passed  the  house  by  a  vote  of  59  to  36,  with  two 
members  absent.4 

The  bill  thus  passed  by  the  house  reached  the  senate  on  June  25, 
and  was  referred  to  the  committee  on  finance,  by  which  it  was  re- 

1  Journal  of  the  House  of  Representatives  of  Louisiana  (1896),  417.     The  limita- 
tion upon  the   powers  of  the   convention  complained  of  in  this  and  the  following 
speeches  was  afterward  made  the  basis  of  an  attack  on  the  constitution  framed  by 
it.    See  State  v.  Favre,  51  La.  Ann.  536. 

2  Journal  of  the  House  of  Representatives  of  Louisiana  (1896),  417. 
8  Id.  4  Id.  416,  417. 


LOUISIANA  317 

ported  favorably.1    Two  substitute  measures  were  offered,2  one  of 
which  contained  the  following  provision:  — 

"Sec.  5.  Be  it  further  enacted,  etc.  That  the  Constitution  framed  by  said 
convention  shall  be  submitted  to  the  people  for  their  adoption  or  rejection."  s 

Both  of  these  measures  were  rejected,  the  latter  by  a  vote  of  26 
to  7,  with  three  members  absent,4  and  the  house  bill  was  made  a 
special  order  for  June  3o,5  and  on  that  day  it  came  on  for  final 
passage.  Senator  Martin  (Democrat)  explained  his  vote  as  follows : — 

"  In  voting  on  this  measure  I  desire  to  state  that  a  call  for  a  Constitutional 
Convention  should  contain  no  limitations  or  restrictions.  The  people  when  in 
convention  assembled  are  supreme,  and  the  Legislators  have  no  right  to  dictate 
to  them  what  they  should  or  should  not  do.  I  favored,  by  my  amendments  to 
this  bill,  which  unfortunately  have  been  defeated,  an  unlimited  Constitutional 
Convention  assembled  and  that  they  will  so  regard  their  rights  when  assembled 
and  if  necessary  disregard  whatever  limitations  or  restrictions  which  are  contained 
in  this  bill,  I  vote  '  yea.' " 5 

Senator  Sholars  (Democrat)  said :  — 

"  The  pending  bill  declares  that  there  are  certain  measures  about  which  the 
people  should  not  legislate.  The  people  are  sovereign  and  we  are  their  servants. 
This  relationship  constrains  me  to  declare  that  I  cannot  vote  for  a  bill  which, 
while  calling  them  together  to  frame  an  organic  law,  would  yet  tie  their  hands  as 
to  action  on  many  important  measures."  7 

On  the  roll-call  twenty-five  senators  voted  in  favor  of  the  measure 
and  seven  against,  three  being  absent.8  On  July  7,  the  measure 
received  the  executive  approval  and  became  a  part  of  the  law  of 
Louisiana.9 

3.     The  Measure 

The  law  thus  enacted  has  been  styled  "a  curiosity  among  the 
acts  calling  Constitutional  Conventions."  10  It  provided  for  submit- 
ting proposals  for  a  convention,  "with  full  power  to  frame  and  adopt, 
without  submission  to  the  people,  a  new  Constitution  for  the  State,"  and 
then  proceeded  to  enumerate  certain  subjects  upon  which  the  con- 
vention was  prohibited  from  acting.11 

1  Journal  of  the  House  of  Representatives  (1896),  262. 

2  Journal  of  the  Senate  of  Louisiana  (1896),  262-266.    7  Id.  296,  297. 

3  Id.  266.  *  Id.  267.  » Id.  296. 

4  Id.  «  Id.  296.  9  Acts  of  Louisiana  (1895),  85. 
19  Eaton,  "The  Suffrage  Clause  in  the  New  Constitution  of  Louisiana,"  Harvard 

Law  Review,  XIII,  281.  u  Acts  of  Louisiana  (1896),  85. 


318  THE   PEOPLE'S   LAW 

Mr.  Eaton  further  characterizes  the  act  as 

"a  very  shrewd  device  to  tie  the  hands  of  the  members  of  the  Convention,  and 
yet  to  put  into  effect  the  result  of  their  deliberations  without  submission  to  the 
electors.  ...  It  would  seem  that  great  indeed  must  have  been  the  necessity 
for  a  new  Constitution,  when  coupled  with  an  affirmative  vote  for  calling  a  Con- 
stitutional Convention,  was  the  renunciation  by  the  electors  of  their  right  to  pass 
upon  the  results  of  the  labor  of  the  Convention.  This  may  be  shrewd  politics, 
but  it  is  poor  statesmanship  thus  to  compel  the  electors  to  renounce  their  rights 
or  else  go  without  a  much  needed  new  Constitution."  x 

B.     The  Convention 

On  February  8,  1898,  the  convention  met  at  Tulane  Hall  in  New 
Orleans.  All  but  one  of  the  one  hundred  and  thirty-four  delegates 
were  present.  In  point  of  nationality  the  members  included  twenty- 
one  only  of  the  original  French  stock,2  and  politically  the  body  was 
overwhelmingly  Democratic,  there  being  but  one  of  any  other  politi- 
cal faith  and  he  a  populist.3  The  convention  was  called  to  order 
by  Chief  Justice  Nicholls,  who  had  performed  a  similar  duty  at  the 
last  preceding  convention,  held  nineteen  years  before,  and  Hon. 
Ernest  B.  Kruttschnitt  was  unanimously  elected  President.4  The 
attention  of  the  delegates  was  largely  devoted  to  the  discussion  of 
plans  concerning  the  suffrage,  and  this  fact,  together  with  the  peculiar 
wording  of  the  act  under  which  the  convention  was  called,  seems 
to  have  foreclosed  any  extensive  discussion  as  to  whether  the  results 
of  its  labors  ought  to  have  been  referred  to  the  people.  At  any  rate, 
when  it  adjourned  on  May  13  it  had  exercised  the  power  of  "  put- 
ting into  effect  a  new  constitution"  which  the  statute  in  terms  con- 
ferred and  left  nothing  more  to  be  done  by  the  voters. 

C.     Validity  of  the  Constitution  Assailed 

As  in  Mississippi  and  South  Carolina  this  action  was  not  accepted 
as  final  and  steps  were  soon  taken  to  question  its  validity  in  the  courts. 
In  a  murder  case,5  tried  in  the  parish  of  Acadia  during  1898,  the 
accused  filed  a  motion  to  quash  the  indictment  on  the  ground,  inter 
alia,  that 

1  Eaton,  "  The  Suffrage  Clause  in  the  New  Constitution  of  Louisiana,"  Harvard 
Law  Review,  XIII,  281. 

2  Id.          3  Id.  290.         *  Id.  282.         5  State  v.  Favre,  51  La.  Ann.  434  (1899). 


LOUISIANA  319 

"  the  pretended  Constitution  of  the  State,  of  1898,  under  which  this  defendant 
was  indicted  and  now  held  for  trial,  is  unconstitutional  and  illegal,  null  and 
void,  for  this,  viz. ;  that  it  was  passed  and  adopted  in  contravention  of  Article 
256  of  the  Constitution  of  1879,  which  provides,  that  all  amendments  shall 
be  submitted  to  the  electors  for  their  approval  or  rejection,"  and  "that  the 
pretended  Constitution  of  1898  is  a  mere  amendment  of  the  Constitution  of  1879, 
and  is  therefore  null  and  void,  never  having  been  submitted  to  the  people  as 
required,  as  aforesaid."1 

The  trial  court  overruled  the  motion,  holding 

"  that  the  act  calling  the  convention  was  in  the  nature  of  a  proposition  sub- 
mitted to  the  people  as  to  whether  or  not  a  convention  should  be  held,  and  if 
held,  that  it  should  be  held  as  provided  in  the  act,  a  feature  of  which  was,  that 
it  would  not  have  to  submit  its  work  to  the  people. 

"  When,  therefore,  the  people  voted  to  hold  a  convention,  they  declared  that 
it  should  be  held  and  adopted  without  submission  to  the  people,  as  had  been 
specially  provided  for  in  the  act  calling  same  together." 2 

The  case  was  thereupon  appealed  to  the  Supreme  Court,  where  the 
validity  of  the  new  instrument  was  again  declared.  The  reasoning 
of  the  court  was  in  part  as  follows : 3  — 

"  The  principle  [sic]  contention  of  counsel  in  favor  of  his  theory  is,  that  the 
legislative  act  which  proposed  the  convention  scheme,  suggested  certain  restric- 
tions to  be  placed  upon  the  delegates  to  be  thereto  accredited,  when  in  conven- 
tion assembled,  and  that,  in  consequence  thereof,  certain  provisions  of  the 
Constitution  of  1879  were  kft  in  fuM  force ;  hence  the  present  Constitution  is 
essentially  an  amendment  thereof.  .  .  .  That  the  terms  of  the  statute  propos- 
ing a  Constitutional  Convention  were  not  unlimited  and  sweeping,  would  seem  to 
make  no  practical  difference,  as  the  convention  was  called  upon  the  lines  which 
were  suggested  by  the  legislature,  and  in  exact  conformity  with  the  will  of  the 
sovereign,  as  expressed  at  an  election  duly  held  in  keeping  therewith,  and  the 
delegates  duly  chosen  thereto  were  regularly  convened  and  organized,  and  there- 
after framed  and  promulgated  an  instrument  which  is  styled  a  Constitution  for 
the  state  of  Louisiana. 

"We  deem  it  to  be  our  duty  to  accept  that  instrument  as  the  organic  law  of  the 
State  without  any  hesitation,  or  resort  to  any  refined  distinctions  or  subtle  argu- 
ment on  the  question;  and  thus  accepting  same,  it  is,  in  our  opinion,  exactly 
what  it  purports  to  be,  a  Constitution  and  not  an  amendment  to  an  existing 
Constitution." 

1  Id.  435-  '  Id.  8  Id.  436. 


CHAPTER  XXIV 

VIRGINIA 
A.     The  Preliminary  Movement 

THE  most  recent  participant  in  the  movement  now  under  dis- 
cussion is  Virginia.  The  constitution  of  1869,  generally  known  as 
the  "Underwood"  constitution,  had  been  a  source  of  dissatisfaction 
from  the  first,  and  resolutions  looking  toward  its  amendment  or  dis- 
placement had  been  introduced  at  every  session  of  the  legislature 
since  I874.1  In  1888,  an  act  referring  the  question  to  the  people 
was  passed.2  But  the  poll  taken  the  following  year  showed  an  over- 
whelming majority  against  the  proposition.3  The  course  of  events 
in  the  states  farther  south  was,  however,  keenly  followed  in  Virginia,4 
and  probably  did  much  to  change  public  sentiment  on  the  question 
of  calling  a  convention,  and  when  another  proposal  was  submitted 
in  1896,  though  defeated,  it  received  a  much  larger  vote  than  on  the 
previous  occasion.5  Finally,  in  1900,  the  question  was  again  sub- 
mitted,6 and  the  result  was  a  large  majority  in  favor  of  a  convention.7 

In  view  of  subsequent  events  the  language  of  the  constituent  act, 
passed  in  pursuance  of  this  vote,  is  important.  It  provided  that 
the  delegates  elected  should  meet  "  in  general  convention  to  consider, 
discuss,  and  propose  a  new  constitution  or  alterations  to  the  existing 
constitution." 

1  Chandler,  "The  History  of  Suffrage  in  Virginia,"  Johns  Hopkins  University 
Studies,  XIX,  341. 

2  Id.;    Brenaman,  "A  History  of  Virginia  Conventions"  (Richmond,  1902),  81. 
This  was  in  pursuance  of  a  constitutional  requirement. 

3  Brenaman,  id.     The  vote  was  63,125  against  and  3698  in  favor. 

4  See  the  remarks  of  President  Goode  of  the  convention,  Brenaman,  "A  History 
of  Virginia  Conventions,"  89. 

5  Id.  82;  Chandler,  "History of  Suffrage  in  Virginia,"  Johns  Hopkins  University 
Studies,  XIX,  342. 

8  Virginia  Session  Laws,  1900,  835. 

7  The  vote  was  77,362  to  60,375.     See  Brenaman,  83. 

320 


VIRGINIA  321 

It  further  provided  that:  — 

"  If  said  convention  shall  agree  upon  a  revised  and  amended  constitution 
on  or  before  the  5th  day  of  October,  1901,  the  said  revised  and  amended  constitu- 
tion shall  be  submitted  to  the  qualified  voters  of  the  commonwealth  as  a  whole  or  by 
separate  articles  or  sections,  as  the  convention  may  determine,  for  ratification  or 
rejection,  at  the  general  election  to  be  held  on  the  $th  day  of  November,  1901." 

Provision  is  then  made  for  the  method  of  voting,  and  the  act  con- 
tinues as  follows :  — 

"  But  if  said  convention  shall  not  propose  a  revised  and  amended  constitu- 
tion on  or  before  the  5th  day  of  October,  1901,  it  shall  remain  for  the  next  Gen- 
eral Assembly  to  enact  such  measures  as  it  may  deem  proper  for  submitting  said 
revised  and  amended  constitution  to  the  people  of  this  commonwealth  for  ratifi- 
cation or  rejection." l 

Undoubtedly,  one  of  the  efficient  causes  which  finally  brought 
about  the  adoption  of  the  proposal  for  a  convention  was  the  course 
of  the  organization  of  the  dominant  political  party  in  Virginia.  That 
party  had  at  its  state  convention  at  Norfolk  in  May,  1900,  just  before 
the  poll  was  taken,  adopted  a  resolution  favoring  a  new  constitution 
and  declaring  it  the  sense  of  that  body  "that  when  such  a  constitu- 
tion shall  have  been  framed,  it  shall  be  submitted  to  a  vote  of  the 
people  for  ratification  or  rejection."  2  It  is  very  clear  therefore  that 
before  the  electors  of  Virginia  expressed  themselves  on  the  question 
of  calling  a  convention  it  was  understood  and  expected  that  the  work 
of  that  body  was  to  be  ratified  by  the  people. 


B.     The  Convention 

Delegates  were  chosen  in  May,  1901,  and  the  convention  assem- 
bled at  Richmond  in  the  following  month.  It  included  one  hundred 
members,  of  whom  less  than  one-half  were  lawyers.3  On  political 
lines  the  dominant  party  in  the  state  had  an  overwhelming  majority 

1  Virginia  Session  Laws,  1901,  p.  262.     This  statute  was  entitled  "  An  Act  to  Provide 
for  the  Selection  of   Delegates  to  the  Constitutional    Convention  for   the   convening 
of  said  delegates,  the  organization  of  the  said  convention,  and  for  submitting  the  Re- 
vised and  Amended  Constitution  to  the  people  of  the  State  of  Virginia  for  ratification 
or  rejection." 

2  Chandler,  "History  of  Suffrage  in  Virginia,"  Johns  Hopkins  University  Studies, 
XIX,  344,  345. 

3  McKinley,   "Two  New  Southern  Constitutions,"   Political  Science   Quarterly, 
XVIII,  481. 

Y 


322  THE   PEOPLE'S    LAW 

of  the  delegates,  there  being  but  eleven  of  their  opponents  out  of 
the  total  number.1  While  the  main  purpose  of  the  majority  was  the 
exclusion  of  the  negro  from  the  franchise,  another  question  incidental 
thereto,  but  more  directly  in  point  here,  soon  became  a  leading  issue 
in  the  convention.  This  was  the  question,  whether  the  new  instru- 
ment should  really  be  submitted  to  the  electors,  and  if  so,  then, 
whether  to  the  electors  designated  by  the  old  or  the  new  constitution. 
The  latter  phase  of  the  question  was,  it  will  be  remembered,  very 
similar  to  the  one  which  confronted  the  predecessors  of  these  dele- 
gates in  the  Virginia  convention  of  182 p.2  As  to  the  first  phase  of 
the  question,  there  would  seem  to  be  but  little  doubt  from  a  legal 
standpoint.  But  a  majority  of  the  delegates  were  not  lawyers,  as 
was  the  case  in  the  contemporary  Alabama  convention;  they  were 
largely  business  men  and  farmers.3  During  the  eighteen  days  of 
debate,4  which  raged  over  the  question  of  the  convention's  power 
to  put  its  work  in  force  without  popular  approval,  those  who  took  the 
affirmative  revived  the  eighteenth  century  arguments  in  support 
of  the  theory  that  the  convention  is  sovereign ;  but  the  practical  argu- 
ment which  appears  to  have  weighed  most  was  the  fear  of  rejection  — 
the  belief  that  the  class  about  to  be  disfranchised,  together  with  other 
dissatisfied  elements,  would  be  sufficiently  numerous  to  insure  the 
defeat  of  the  new  instrument. 

The  question  was  not  settled  upon  the  close  of  the  debate,  which 
took  place  in  September,  1901,  but  the  vote  was  deferred  until  a  later 
date  and  the  opinion  still  prevailed  that  the  constitution  would  be 
submitted.5  In  April,  1902,  the  convention  took  a  recess  of  about 
six  weeks  and  the  question  of  submission  was  held  in  abeyance  during 
all  this  period.  Instead  of  a  formal  submission  according  to  law  and 
pursuant  to  the  constituent  act,  the  dominant  party  had  decided 
upon  a  reference  of  the  question  to  its  own  members.  At  first  it 
was  proposed  that  primaries  should  be  held  for  this  purpose,  but 
afterward  mass  meetings  were  substituted  for  these  and  their  expres- 

1  McKinley,  "  Two  New  Southern  Constitutions,"  Political  Science  Quarterly, 
XVIII,  481. 

3  See  Brenaman,  "A  History  of  Virginia  Conventions"  (Richmond,  1902),  91, 
92.  Cf.  ante,  219—222. 

3  McKinley,   "Two  New  Southern   Constitutions,"   Political  Science  Quarterly, 
XVIII,  481. 

4  Id.  508.     Cf.  Brenaman,  92. 

5  McKinley,   "Two  New  Southern  Constitutions,"  Political   Science   Quarterly, 
XVIII,  508,  509. 


VIRGINIA  323 

sions  were  largely  in  favor  of  proclaiming  the  constitution.1  It  was 
the  voice  of  this  unofficial  and  extra-legal  organization  which  finally 
determined  the  question  over  which  the  delegates  had  so  long  debated. 
The  expressions  of  these  mass  meetings  were  more  potent  than  con- 
stitutional precedents  or  acts  of  the  legislature.  When  the  conven- 
tion reassembled  in  May,  1902,  there  was  another,  though  brief, 
debate,  and  on  the  2pth  of  the  month,  by  a  vote  of  47  to  38,  the  con- 
vention decided  to  proclaim  the  instrument  in  force  without  submit- 
ting it  to  the  people.2  On  June  6  following,  by  a  vote  of  90  to  10, 
the  constitution  was  formally  adopted. 

The  instrument  thus  put  into  force  is  one  of  extreme  length  and 
well  illustrates  the  tendency  of  later  constitutions  in  this  direction. 
On  the  suffrage  question,  it  incorporates  both  the  " hereditary"  and 
the  "  understanding "  clauses  of  its  recent  predecessors  in  the  South.3 
As  to  future  amendments  it  retained  the  provision  of  the  instrument 
of  1869,  but  changed  this  in  respect  to  calling  future  conventions  and 
authorized  proposals  at  any  time  by  a  majority  of  the  general  assembly, 
omitting  the  requirement  of  periodical  consultation  of  the  people, 
which  its  predecessor  had  contained.4 


C.    Attempts  to  test  the  Validity  of  the  Constitution 

It  seems  to  have  been  understood  from  the  first  that  the  course 
pursued  by  the  convention  was  irregular  and  would  be  challenged. 
As  soon  as  the  vote  in  favor  of  proclaiming  had  been  announced,  the 
following  resolution  was  offered  by  a  delegate  who  had  opposed  the 
action  of  the  majority,5  and  was  adopted :  — 

"  Resolved,  That  as  it  has  been  determined  to  proclaim  the  constitution,  pro- 
vision should  be  made  for  its  recognition,  when  adopted,  by  the  political  depart- 
ments of  the  government  and  to  that  end  the  general  assembly  shall  be  convened 
at  an  early  date." 

Pursuant  to  this  resolution,  the  general  assembly  was  convened  in 
special  session  for  the  purpose  of  taking  an  oath  to  the  new  instrument 

1  McKinley,  Political  Science  Quarterly,  508,  509. 

2  Id.     The  figures  are  as  given  by  Brenaman,  "A  History  of  Virginia  Conventions," 
93.     McKinley  gives  the  vote  as  48  in  favor. 

8  Art.  II;'  Brenaman  (ad  Pt.),  4.  4  Art.  XV;  Brenaman  (ad  Pt.),  65. 

6  Brenaman,  "A  History  of  Virginia  Conventions,"  93. 


324  THE   PEOPLE'S   LAW 

as  prescribed  therein.1    The  assistant  secretary  of  the  convention 
declares  that, 

"  After  this  was  done  the  strongest  opponents  of  proclamation  admitted  that 
the  new  constitution  could  not  be  successfully  assailed  in  the  courts."  2 

It  was  "assailed,"  however,  even  if  not  successfully.  Actions  were 
brought  in  the  United  States  Circuit  Court,  sitting  at  Richmond,  for 
the  purpose  of  having  the  instrument  declared  inoperative,  but  these 
were  dismissed  in  the  month  of  November,  1902,  on  the  ground  that 
the  Federal  court  had  no  jurisdiction.3  An  appeal  was  then  taken  to 
the  Supreme  Court  of  the  United  States,  where  a  similar  ruling  was 
made.4  At  the  time  of  the  decision  in  the  lower  court,  it  was  an- 
nounced that  actions  would  be  commenced  against  members  of  the 
convention  by  negroes  who  had  been  denied  registration  under  the 
new  instrument.5 

It  will  be  seen  that  the  question  of  the  validity  of  this  constitution 
is  presented  in  a  much  more  acute  form  than  in  the  other  states  which 
had  preceded  in  this  line  of  action,  and  where  the  constituent  act 
either  expressly  authorized  the  convention  to  proclaim  its  instrument, 
as  in  Mississippi,  or  else  was  silent  on  that  point.  To  uphold  the 
course  of  the  Virginia  delegates  it  is  necessary  not  merely  to  revive 
the  exploded  theory  that  the  convention  is  sovereign,  but  also  to 
maintain  that  sovereignty  resides  in  that  body  notwithstanding  it 
was  created  by  the  people  upon  the  express  condition  that  it  should 
submit  its  work  to  them.  Such  a  theory  seems  to  be  without  support 
in  law,  logic  or  morals. 

Such  a  course,  too,  seems  peculiarly  anachronistic  and  out  of  place 
in  Virginia.  It  was  here  that  Jefferson,  the  earliest  advocate  of 
popular  ratification  in  the  revolutionary  period  outside  of  New 
England,  submitted  his  plan  to  the  first  constitutional  convention. 
It  was  here,  too,  that  the  first  judicial  utterance  (though  a  dictum) 
was  made,  declaring  it  to  be  "the  consent  of  the  people  which  gives 
validity  to  a  constitution."  6  It  was  in  Virginia  that  the  plan  was  first 

1  Brenaman,  "  A  History  of  Virginia  Conventions,"  93 ;  Schedule  of  Constitution, 
sec.  22. 

Brenaman,  "  A  History  of  Virginia  Conventions,"  93. 

See  the  associated  press  despatches  for  November  29,  1902. 

See  The  Nation,  LXXVIII,  322. 

See  the  associated  press  despatches  for  November  25,  1902. 

Kamper  v.  Hawkins,  i  Virginia  Cases,  20. 


VIRGINIA  325 

applied  to  the  constitution  of  a  Southern  state,  and  it  was  largely 
through  this  constitution  and  this  precedent  that  the  system  became 
general  throughout  the  South.  And  when  we  recall  that  even  the 
secession  ordinance  was  submitted  to  the  Virginia  voters  and  that  the 
only  break  in  the  record,  after  the  first  attempt,  was  the  abortive 
reconstruction  instrument  which  Congress  refused  to  approve,  the 
proceedings  of  this  latest  convention  appear  as  a  complete  departure 
from  the  beaten  paths. 

And  indeed  this  remark  is  applicable,  though  to  a  less  degree,  to 
all  those  communities  of  the  South  which  have  attempted  to  return 
to  the  practice  of  constitution-making  without  a  vote  of  the  people. 
Their  course  is  not  alone  contrary  to  our  basic  political  theory  — 
the  sovereignty  of  the  people.  It  is  also  a  deliberate  abandonment 
of  one  of  their  own  most  beneficial  institutions,  a  valuable  part  of 
their  ancient  Teutonic  heritage,  and  the  outcome  of  political  effort 
and  experiment  for  ages.  The  states  which  have  discarded  sub- 
mission are  attempting  to  turn  back  the  dial  of  history  and  to  sacrifice 
the  results  of  twenty  centuries  of  civic  evolution.1 

1  There  are  already  signs  that  the  reaction  is  only  temporary.  South  Carolina, 
e.g.,  submitted  to  its  voters  on  July  14,  1908,  the  question  of  substituting  "  state-wide 
prohibition  "  for  the  dispensary  system.  "  Equity,"  X,  49. 


///.   PRESENT  STATUS 

*• 

CHAPTER   XXV 

SOME  LAW  AS  TO  POPULAR  RATIFICATION 
A.     The  Vote  Necessary  to  Ratify 

ABOUT  the  subject  of  this  treatise  there  has  grown  a  department  of 
constitutional  law,  already  of  considerable  extent  and  rapidly  growing, 
to  which  it  seems  fitting  to  devote  the  closing  chapter  of  this  branch 
of  the  work.  When  once  it  is  determined  that  a  constitution  or 
amendment  shall  be  submitted,  the  further  question  is  presented  as 
to  those  by  whom  the  ratification  shall  be  effected.  In  popular 
language  we  speak  of  submitting  constitutions  and  amendments  to 
"the  people,"  and  this  phrase  has  been  incorporated  into  some  of 
the  constitutions  themselves.1  The  word  " people"  in  this  connec- 
tion means,  of  course,  the  voters.2  But  in  practice  it  never  hap- 
pens that  the  entire  body  of  the  electorate  exercises  its  privilege  of 
passing  on  instruments  thus  submitted.  Indeed,  it  frequently  occurs, 
as  will  be  shown  later,3  that  only  a  small  fraction  of  the  voters 
actually  participates  in  such  determination.  The  question  accord- 
ingly arises,  When  is  an  instrument  popularly  ratified  and  what 
proportion  of  the  electors  is  necessary  to  effect  this  result?  The 
answers  of  the  courts  to  this  question  have  not  been  altogether  har- 
monious ;  and  indeed  the  provisions  in  the  constitutions  themselves 
with  respect  to  this  are  far  from  uniform. 

We  have  seen  that  the  earliest  constitutions  which  provided  for 
popular  ratification  at  all,  required  the  assent  of  a  majority  of  those 
voting  at  the  election.  It  was  almost  the  middle  of  the  century,  how- 

1  Nevada  Constitution,  Art.  XVI,  sec.  i ;  Poore,  "  Charters  and  Constitutions,"  II, 
1263;  New  Jersey  Constitution  (1844),  Art.  IX;  Poore,  II,  1323. 

2  "The  people,  for  political  purposes,  must  be  considered  synonymous  with  quali- 
fied voters."     Blair  v.  Ridgely,  41  Mo.  177;  97  Am.  Dec.  248. 

3  See  post,  Chap.  XXVI. 

326 


SOME   LAW   AS   TO   POPULAR   RATIFICATION  327 

ever,  before  a  judicial  construction  of  this  phrase  in  a  constitutional 
case  was  announced. 

In  1849  tne  legislature  of  Wisconsin  submitted  a  proposed  statute 
extending  the  franchise  to  the  negro,  but  to  become  operative  upon 
the  approval  of  "a  majority  of  all  the  votes  cast  at  such  election."  * 
This  act  received  the  approval  of  nearly  one-third  more  than  those 
voting  against  it  but  failed  to  receive  a  majority  of  the  votes  cast  for 
candidates  at  the  election  occurring  on  the  same  day.  When  the 
validity  of  the  act  was  afterward  in  question  before  the  Wisconsin 
Supreme  Court  that  tribunal  rejected  the  contention  that  the  act 
required  the  approval  of  a  majority  of  all  votes  on  all  subjects  and  for 
all  officers  and  declared  the  true  meaning  to  require  only  a  majority 
of  those  cast  in  reference  to  the  act  itself.2  This  conclusion  has  been 
much  criticised  in  Wisconsin  3  as  well  as  elsewhere.4 

The  constitutional  phraseology  above  quoted  has  been  construed 
by  the  Ohio  court  to  mean  "a  majority  of  all  the  electors  voting  at 
the  election  for  senators  and  representatives,  as  being  the  election 
indicated  by  the  language  'such  election.'"5 

This  provision  of  the  Ohio  constitution  was  afterward  incorporated 

1  Wisconsin  Laws  (1849),  Chap.  137. 

2  Gillespie  v.  Palmer,  20  Wis.  572.     In  the  course  of  its  opinion  the  court  said: 
"  If  the  first  construction,  requiring  a  majority  of  all  the  votes  on  all  subjects  and  for 
all  offices,  cast  at  such  election,  in  favor  of  the  extension  of  suffrage,  before  it  can  be 
adopted,  is  the  true  construction,  then  the  same  voter  might  cast  one  vote  in  favor  of 
the  extension,  and  in  voting  for  the  candidates  for  the  different  offices  cast  ten  votes 
which  would  be  counted  against  the  very  measure  he  voted  for.     This  absurdity  in- 
volved in  the  first  construction  is  conclusive  against  it.  ...     It  is  more  in  accordance 
with  the  general  principles  of  legislation  upon  such  subjects,  and  more  reasonable,  to 
construe  the  clause  as  a  provision  for  the  extension  of  suffrage  in  case  a  majority  of  all 
the  votes  on  that  subject  cast  at  any  general  election  should  be  in  its  favor.     We  do  not 
see  how  any  other  construction  can  reasonably  be  given  to  the  clause.     The  words 
added  by  this  construction  are  words  which,  whenever  the  same  or  similar  language 
is  used  in  reference  to  a  vote  on  any  measure  or  for  any  office,  are  generally  understood." 

3  In  Bound  v.  Wisconsin  Cent.  R.R.  Co.,  45  Wis.  579,  Chief  Justice  Ryan  classes 
it  among  certain  other  decisions  "which  have  long  been  made  a  reproach  to  the 
court,  as  judgments  proceeding  upon  policy  rather  than  upon  principle." 

4  Stebbins  v.  Judge,  108  Mich.  695.    See  also  State  v.  Powell,  77  Miss.  543,  583; 
State  v.  Foraker,  46  Ohio  St.  694 ;   Rice  v.  Palmer,  78  Ark.  432,  where  the  court 
says:  "This  method  of  amending  the  Constitution  by  direct  vote  of  the  people  is  an 
adaptation  to  the  American  constitutional  system  of  the  initiative  and  referendum  of 
the  Swiss  Republic.     For  a  change  there  to  be  made  in  the  organic  law  it  must  secure 
a  majority,  not  only  of  all  the  citizens  of  the  Republic,  but  of  all  the  Cantons." 

8  State  v.  Foraker,  46  Ohio  St.  690.     Stress  is  laid  on  the  intentior  of  the  constitu- 
tion framers  as  evidenced  by  the  debate  in  the  convention. 


328  THE   PEOPLE'S   LAW 

into  that  of  Nebraska,1  and  the  Supreme  Court  of  the  latter  state 
held  it  to  require  "that  the  favorable  votes  be  in  excess  of  one-half  of 
the  highest  aggregate  number  of  votes  cast  at  said  election,  whether 
such  highest  number  be  for  the  selection  of  an  officer  or  upon  the 
adoption  of  a  proposition."  2 

The  present  constitution  of  Mississippi  provides  for  the  adoption 
of  amendments  by  "a  majority  of  the  qualified  electors  voting,"  and 
this  is  likewise  construed  as  relating  to  the  total  vote  at  the  election.3 

On  the  other  hand,  where  the  constitution  expressly  provides  for 
the  ratification  of  amendments  by  "  a  majority  of  those  voting  thereon  " 4 
the  intent  is  obvious,  and  the  courts  have  generally  given  such  phrases 
their  ordinary  and  natural  construction.5 

Questions  have  been  raised,  however,  even  in  this  connection. 
Thus  the  Kansas  court  found  it  necessary  to  decide  that  the  phrase 
"a  majority  of  the  electors  voting  on  said  amendments  "  did  not  re- 
quire for  the  adoption  of  a  particular  amendment  a  majority  of  those 
voting  on  all.6  So  where  the  requirement  is  "a  majority  of  the  elec- 
tors qualified  to  vote  for  members  of  the  legislature  voting  thereon" 
it  could  not  be  extended  to  include  a  majority  of  those  enrolled  on 

1  The  amendment  clause  of  the  Ohio  constitution  was  borrowed  verbatim  by  the 
Nebraska  convention  of  1875. 

2  Tecumseh  National  Bank  v.  Saunders,  51  Neb.  805-6. 

3  "  It  is  not  enough  now  that  a  majority  of  electors  voting  for  legislators  shall  vote 
for  the  amendment.     The  adoption  of  such  an  amendment  requires  a  majority  of  all 
the  qualified  electors  voting  for  any  purpose  whatever.     This  construction  preserves 
the  policy  the  state  manifested  by  these  provisions  in  three  constitutions  by  universal 
usage  before  and  since  the  war."     State  v.  Powell,  77  Miss.  582. 

4  Kansas  Constitution,  Art.  XIV,  sec.   i ;  Maine  Constitution,  Art.  X,  sec.  4 ; 
Massachusetts   Constitution,  Art.  XIII    (Mass.  Revised  Laws,    1902,  42) ;   Nevada, 
Constitution  (1864),  Art.  XVI;  South  Carolina  Constitution  (1896),  Art.  XVI,  sec.  i. 

6  Prohibitory  Amendment  Cases,  24  Kan.  700;  Bott  v.  Secretary  of  State,  63 
N.J.L.  289;  62  NJ.L.  107. 

6  "  It  is  said  that,  computing  the  vote  by  precincts,  it  is  apparent  that  more  than 
twice  92,302  voters  voted  on  the  two  amendments,  some  on  one  and  some  on  the  other, 
and  that,  before  any  one  amendment  is  adopted,  it  must  appear  that  a  majority  of  all 
who  voted  on  all  the  amendments,  voted  in  the  affirmative  on  the  one.  This  does  not 
commend  itself  to  our  judgment.  A  more  correct  interpretation,  grammatically,  of  this 
language  would  be,  that  no  single  amendment  could  be  adopted  unless  all  were,  there 
being  no  provision  for  adopting  one  out  of  several.  But  we  think  the  clear  intent  is,  that 
every  amendment  submitted  shall  stand  upon  its  own  merits,  and  that  if  a  majority  of 
those  voting  upon  it  is  in  the  affirmative,  it  becomes  a  part  of  the  constitution.  This 
idea  is  confirmed  by  the  further  provision,  that  where  more  than  one  amendment  is  sub- 
mitted, they  must  be  so  submitted  as  to  enable  the  voters  to  vote  on  each  separately." 
—  Brewer,  J.,  in  Prohibitory  Amendment  Cases,  24  Kan.  700. 


SOME   LAW  AS   TO   POPULAR   RATIFICATION  329 

the  poll  lists  nor  even  of  those  who  cast  ballots.1  Nor  can  such  language 
be  construed  so  as  to  confine  the  electorate  on  constitutional  changes 
to  those  qualified  to  vote  for  members  of  the  legislature.2 

But  it  is  when  the  language  of  the  requirement  is  general,  specifying 
only  a  majority  of  the  electors,  that  the  greatest  diversity  of  inter- 
pretation, naturally,  is  found.  The  phrase  "  a  majority  of  all  the  voters 
present  and  voting"  has  been  construed  to  require  only  a  majority 
of  those  voting  on  the  proposition.3  The  same  construction  was 
given  to  the  clause  "a  majority  of  the  electors,"  4  and  even  where  the 
language  was  "a  majority  of  the  legal  votes  cast."  5  But  we  have 
already  seen  that  the  opposite  interpretation  has  been  placed  on  the 
words  "electors  voting."  8  And  such  is  also  the  view  of  the  Indiana 
court  as  regards  the  phrase  "a  majority  of  said  electors."  7 

In  both  judicial  and  academic  discussions  of  these  questions,  light 
has  been  sought  from  the  construction  of  analogous  phrases  in  the 
statutes  providing  for  the  submission  of  administrative  questions  to 
a  popular  vote.8  But  it  has  been  judicially  declared  that  "such  de- 
cisions are  of  very  little  value  in  the  solution  of  these  questions."  9 

1  Bott  v.  Secretary  of  State,  63  NJ.L.  289,  where  the  court  said:   "By  the  words 
'electors  voting  thereon'  are  intended  the  electors  who  exercise  the  right  of  suffrage 
in  such  manner  that  their  votes  should  under  the  law  be  counted  for  or  against  the  propo- 
sition submitted;   and  although  the  number  of  names  on  the  poll  lists  may  represent 
the  number  of  qualified  electors  who  attempted  to  vote,  and  the  rejected  ballots  may 
all  have  been  official  ballots  cast  by  some  of  these  qualified  electors,  still  it  may  be  that 
not  all  of  those  qualified  electors  voted,  in  the  constitutional  sense,  and  that  the  rejected 
ballots  were  not  votes." 

2  State  v.  Board  of  Ex.,  21  Nev.  67. 

3  Dayton  v.  City  of  St.  Paul,  22  Minn.  400. 

4  Idaho  Constitution,  Art.  XX,  sec.  i.    "While  it  is  true  that  some  ten  thousand  or 
more  electors  would  seem  to  have  been  entirely  indifferent  upon  the  question  of  the 
adoption  of  this  and  the  other  amendments,  still  all  were  —  must  have  been  —  fully 
advised  as  to  the  importance  of  the  questions  submitted,  and  should  their  indifference 
be  taken  as  conclusive  of  their  opposition  to  the  amendments?     Upon  what  rule  of 
honesty  or  righteousness  can  this  be  claimed?     Is  it  not  more  reasonable,  as  well  as 
more  righteous,  to  say  that  in  a  matter  about  which  they  manifest  such  indifference 
their  silence  shall  be  taken  as  assent?"  —  Green  v.  State  Board  of  Canvassers,  5 
Idaho,  130. 

6  State  v.  Barnes,  3  N.  Dak.  319. 
8  State  v.  Powell,   77  Miss.  543. 

7  In  re  Denny,  156  Ind.  104.     Cf.  State  v.  Swift,  69  Ind.  505,  holding  also  that 
the  legislature  might  provide  that  the  total  number  of  votes  at  the  election  should  be 
taken  as  the  sum  of  the  electorate  of  the  state. 

8  A  collection  of  these  decisions  will  be  found  in  George  F.  Tucker's  article  on 
"Constitutional  Law,"  "Cyclopaedia  of  Law  and  Procedure,"  VIII,  720,  note  n. 

8  State  v.  Powell,  77  Miss.  583.     Cf.  State  v.  Swift,  69  Ind.  505,  520. 


330  THE   PEOPLE'S   LAW 

From  the  authorities  which  construe  the  constitutions  themselves 
it  is  clear  that  the  law  is  far  from  being  settled  or  consistent  as  to  what 
vote  is  required  to  ratify  it.  From  the  standpoint  of  public  policy, 
however,  it  would  seem  that  those  decisions  are  soundest  which  con- 
strue the  language  wherever  possible  as  requiring  only  a  majority 
of  those  actually  participating  in  the  vote  on  the  submitted  proposi- 
tion. To  declare  a  constitution  or  amendment  rejected  by  reason 
merely  of  the  indifference  of  those  who,  while  in  attendance  at  the 
polls,  are  so  unmindful  of  the  privilege  of  popular  ratification  as  to 
neglect  its  exercise  when  opportunity  offers,  is  certainly  to  impair 
its  benefits  and  often  to  prevent  its  employment  when  most  needed. 

B.     The  Legal  Necessity  of  Submission 

We  have  seen  how  nearly  universal  the  custom  of  submitting  con- 
stitutions had  become  prior  to  the  reactionary  movement  which  began 
with  the  Mississippi  convention  of  1890.  We  may  now  inquire  how 
far  that  custom  has  ripened  into  law.  In  other  words,  what  shall  be 
said  of  the  validity  of  these  instruments  of  the  last  decade  whose  his- 
tory has  just  been  reviewed  ?  The  question  is  not  only  an  interesting 
one  from  the  standpoint  of  constitutional  law,  but  it  is  one  of 
gravest  public  importance  and  concern. 

The  courts,  in  some  of  the  very  jurisdictions  where  these  instru- 
ments have  been  declared  in  force,  early  gave  expression  to  a  doctrine 
apparently  inconsistent  with  the  course  recently  followed.  Thus,  in 
an  early  Virginia  l  case  already  cited,  Nelson  J.,  speaking  for  the 
highest  court  said:  "  It  is  confessedly  the  consent  of  the  people  which 
gives  validity  to  a  constitution."  It  is  true  that  the  instrument  there 
involved  was  the  Virginia  constitution  of  1776,  which,  as  we  have 
seen,  was  not  submitted  to  the  people,  but  it  is  at  least  curious  to  note 
that  it  was  in  this  commonwealth  which  has  effected  the  most  recent 
and  radical  departure  from  the  doctrine  that  it  was  first  announced 
in  the  abstract. 

In  a  Maryland  case,2  decided  in  1854,  it  was  declared  that  the  con- 
stitution, "unlike  the  acts  of  our  legislature,  owes  its  whole  force 
and  authority  to  its  ratification  by  the  people."  This  also  was  largely 
obiter,  but  its  utterance  within  so  short  a  time  after  the  submission 

1  Kamper  v.  Hawkins,  i  Virginia  Cases,  20. 
8  Manley  v.  State,  7  Md.  147. 


SOME   LAW   AS   TO   POPULAR   RATIFICATION  331 

of  the  Maryland  constitution  of  1851,  the  first  actually  ratified  by 
the  electors  of  that  state,  is  significant. 

Of  the  first  Alabama  constitution  the  Supreme  Court  of  the  state 
said: 

"  The  constitution  can  be  amended  in  but  two  ways :  either  by  the  people, 
who  originally  framed  it,  or  in  the  mode  prescribed  by  the  instrument  itself.  If 
the  last  mode  is  pursued  ...  it  must  appear  from  the  returns  made  to  the 
secretary  of  state  that  a  majority  of  those  voting  for  representatives  have  voted 
in  favor  of  the  proposed  amendments."  1 

In  Louisiana 2  it  was  held  that  the  constitution  of  1879  operated 
not  from  the  date  of  its  adoption  by  the  convention,  but  only  from  its 
ratification  by  the  people.  And  it  has  been  decided  both  in  that 
state  3  and  in  Nebraska 4  that  a  constitutional  amendment  proposed 
by  the  legislature  is  ineffective  without  popular  approval.  Of  the 
Michigan  constitution  it  has  been  declared  : 5  "That  instrument  can 
only  be  changed  by  the  combined  action  of  the  Legislature  and  the 
people."  And  the  Missouri  court  has  more  recently  said :  "Amend- 
ments derive  their  force  from  the  action  of  the  assembly  which  pro- 
poses them." 6 

Nevertheless  it  must  be  admitted  that  these  expressions  are  prin- 
cipally dicta,  and  that  the  cases  did  not  involve  the  question  presented 
in  extreme  form  in  Virginia,  where,  as  has  been  shown,  the  convention 
declared  its  instrument  in  force  without  the  submission  which  was 
required  by  the  constituent  act.  We  are  not  without  precedent,  how- 
ever, on  this  precise  point. 

The  question  concerning  the  implied  powers  of  a  body  of  this  char- 
acter with  regard  to  legislation  came  before  the  highest  court  of  South 
Carolina  in  1834^  It  is  true  that  the  body  whose  powers  were  in- 
volved was  not  strictly  a  constitutional  convention;  it  was  a  con- 
vention called  to  nullify  certain  acts  of  Congress,  but  a  similar  prin- 
ciple governed,  and,  as  we  shall  see,  the  case  became  a  precedent  for 
a  later  one  relating  to  a  constitutional  convention  proper. 

This  nullification  convention  had  assumed  to  pass  an  ordinance 
defining  allegiance  and  prescribing  a  new  form  of  oath  relating  thereto ; 

1  Collier  v.  Frierson,  24  Ala.  108  (1854). 

2  State  v.  Mayor,  32  La.  Ann.  81.  3  Id.  29  La.  Ann.  863. 

4  In  re  Senate  File,  31,  25  Neb.  864.     The  state  constitution  (Art.  XVII,  sec.  2) 
expressly  requires  the  adoption  of  amendments  by  popular  vote. 

5  Westinghausen  v.  People,  44  Mich.  270. 

6  Edwards  v.  Lesueur,  132  Mo.  434.  7  State  v.  Hunt,  2  Hill  (S.C.)  i. 


332  THE   PEOPLE'S    LAW 

and  the  court,  to  its  credit  be  it  said,  in  the  face  of  excited  popular 
feeling,  declared, 

"  It  is  clear  that  the  convention  had  no  right  to  pass  the  ordinance  defining 
allegiance." 

In  a  much  later  case,1  where  the  validity  of  an  ordinance  passed 
by  the  convention  of  1868  was  involved,  the  above  case  was  cited 
with  approval,  and  the  court  said :  — 

"  It  has  been  doubted  whether  any  act  of  mere  legislation  in  a  state  having 
a  constitution  can  be  passed  by  a  convention  called  for  a  particular  purpose.  .  .  . 
The  convention  of  1868  was  not  called  for  a  purpose  fairly  embracing  the  sub- 
ject of  this  ordinance,  which  was  never  submitted  to  the  people." 

In  a  Missouri  case 2  arising  shortly  after  the  war,  the  question  was 
presented  as  to  the  validity  of  an  ordinance  adopted  by  the  conven- 
tion prescribing  the  qualifications  of  electors  to  whom  the  proposed 
constitution  itself  should  be  submitted.  In  the  course  of  the  opinion 
the  court  observed :  — 

"  The  convention  might  (if  it  had  deemed  proper  to  do  so)  have  declared  the 
constitution  framed  by  it  in  full  force  and  effect  without  making  provision  for  its 
submission  to  the  voters  of  the  state." 

"But  this,"  as  Judge  Cooley  says,3  "was  obiter."  Moreover,  so  far 
as  the  case  holds  that  a  convention  may,  without  specific  authority, 
award  force  even  to  a  temporary  ordinance  without  obtaining  the 
approval  of  the  electors,  it  seems  to  be  opposed  to  all  the  other 
authorities. 

Similar  questions  came  before  the  Supreme  Court  of  Pennsylvania 
in  cases 4  involving  the  validity  of  an  ordinance  passed  by  the  constitu- 
tional convention  of  1873,  providing  for  the  appointment  of  officers 
for  the  election  at  which  the  constitution  was  to  be  submitted.  The 
constituent  act  of  Pennsylvania,  like  that  of  Virginia,  required  a  sub- 
mission of  the  constitution,  and  the  separate  ordinance  referred  to 
was  held  void  on  the  ground  that  the  act  conferred  no  authority  for 
its  enactment.  To  the  argument  that  the  convention  had  implied 
power  to  enact  a  constitu  tion,  the  court  replied  as  follows :  — 

"  The  convention  is  not  a  coordinate  branch  of  the  government.  It  exercises 
no  governmental  power,  but  it  is  a  body  raised  by  law,  in  the  aid  of  the  popular 

1  Gibbs  v.  R.  Co.,  13  S.C.  242. 

2  State  v.  Neal,  42  Mo.  119.  *  Constitutional  Limitations,  42. 
*  Wells  v.  Bain,  75  Pa.  St.  39 ;  Woods'  Appeal,  75  Pa.  St.  59. 


SOME   LAW   AS   TO   POPULAR   RATIFICATION  333 

desire  to  discuss  and  propose  amendments  which  have  no  governing  force  so  long 
as  they  remain  propositions.  While  it  acts  within  the  scope  of  its  delegated 
powers  it  is  not  amenable  for  its  acts,  but  when  it  assumes  to  legislate,  to  repeal 
and  displace  existing  institutions  before  they  are  displaced  by  the  adoption  of  its 
propositions,  it  acts  without  authority." 

More  recently  the  Supreme  Court  of  Texas  had  occasion  to  pass 
upon  this  question.1  The  constitutional  convention  of  1868  had  at- 
tempted to  pass  a  separate  ordinance  providing  for  the  levy  of  a  tax 
to  aid  in  the  construction  of  a  railway.  The  court  observed :  — 

"  But  we  are  of  opinion  that,  when  a  convention  is  called  to  frame  a  consti- 
tution, it  cannot  pass  ordinances,  and  give  them  validity  without  submitting  them 
to  the  people  for  ratification  as  a  part  of  the  constitution.  The  delegates  to  such 
a  convention  are  but  agents  of  the  people,  and  are  restricted  to  the  exercise  of 
the  powers  conferred  upon  them  by  the  law  which  authorizes  their  election  and 
assemblage.  .  .  .  The  ordinance  now  under  consideration  was  not  submitted 
to  a  vote,  though  two  others  which  were  added  to,  incorporated  into,  and  signed 
as  a  part  of,  the  constitution,  were  so  submitted.  Since  the  convention  could  not 
finally  legislate,  and  since  a  vote  of  the  people  was  necessary  to  make  its  action 
effective,  we  conclude  that  the  ordinance  in  question  was  invalid,  and  not  effective 
for  any  purpose." 

The  doctrine  of  these  cases  appears  to  be  somewhat  qualified  by 
a  Kentucky  decision.2  In  the  proceedings  for  the  adoption  of  the 
present  constitution  of  that  state  a  question  arose  which  is  thus  stated 
in  the  opinion :  — 

"The  convention  met  in  September,  1890,  and  having  in  April,  1891,  com- 
pleted a  draft  of  a  constitution,  it,  by  ordinance,  submitted  it  to  a  popular  vote, 
and  then  adjourned  until  September  following.  During  the  recess  the  work  was 
approved  by  a  majority  of  nearly  one  hundred  and  forty  thousand,  three  hun- 
dred and  sixty.  When  the  convention  reassembled,  the  delegates,  moved  no 
doubt  by  a  patriotic  impulse,  made  numerous  changes  in  the  instrument,  some  of 
which  are  claimed  to  be  material,  while  others  were  but  a  change  of  language  or 
the  correction  of  grammatical  errors:  and  as  thus  amended  it  was  promulgated 
by  the  convention  on  September  28,  1891,  as  the  Constitution  of  the  State." 3 

The  instrument  as  promulgated  was  sought  to  be  declared  void  on 
the  ground  that  it  was  not  the  one  adopted  by  the  people.  After 
declaring  the  question  to  be  a  political  rather  than  a  judicial  one,  and 
laying  stress  on  the  popular  acquiescence  in  the  new  instrument,  the 
court  concludes:  — 

1  Quinlan  v.  R.  Co.,  89  Tex.  356,  34  S.  W.  Rep.  744. 

2  Miller  v.  Johnson,  92  Ky.  589.  3  Id.  591. 


334  THE   PEOPLE'S  LAW 

"  We  need  not  consider  the  validity  of  the  amendments  made  after  the  con- 
vention reassembled.  If  the  making  of  them  was  in  excess  of  its  power,  yet  as 
the  entire  instrument  has  been  recognized  as  valid  in  the  manner  suggested,  it 
would  be  equally  an  abuse  of  power  by  the  judiciary,  and  violation  of  the  rights 
of  the  people,  who  can  and  properly  should  remedy  the  matter,  if  not  to  their 
liking,  if  it  were  to  declare  the  instrument  or  a  portion  invalid,  and  bring  con- 
fusion and  anarchy  upon  the  State."  1 

But  there  is  also  a  vigorous  opinion  by  Judge  Bennett,  who  states 
and  answers  the  question  as  follows :  — 

"  Did  the  convention,  upon  its  reassembling,  have  the  extraordinary  power  to 
materially  change  or  abrogate  in  toto  the  constitution,  which  the  people,  just  a  few 
weeks  before,  had  adopted  as  their  fundamental  law,  by  a  majority  of  one  hun- 
dred and  thirty -eight  thousand  votes,  and  declare  their  own  production  to  be  the 
fundamental  law  of  the  State  for  the  government  of  their  masters?  I  say  the 
convention  had  no  such  power,  and  only  a  few  suggestions  will  suffice  to  show 
the  truth  of  my  assertion." 2 

To  the  suggestion  in  the  majority  opinion  that  the  constitution  of 
1850,  under  which  the  proceedings  for  adopting  the  new  instrument 
were  conducted,  "  contains  no  provision  giving  the  legislature  the 
power  to  require  a  submission  of  its  work  to  a  vote  of  the  people," 
Judge  Bennett  replies :  — 

"  By  the  silence  of  the  constitution,  the  right  of  the  people  to  require  the  sub- 
mission was  not  surrendered,  but  was  reserved  by  them  as  their  inherent  and 
inalienable  right,  which  they  could  exercise  directly  by  approving  or  rejecting 
the  instrument ;  or  by  conferring  that  right  upon  their  delegates,  as  agents.  That 
construction  does  not  impair,  by  implication,  the  rights  of  the  people;  but  their 
rights  are  left  as  they  declared  them  —  inherent  and  inalienable.  If  we  do  not 
declare  the  language  quoted  to  mean  as  I  have  indicated,  but  give  it  the  construc- 
tion contended  for  by  the  distinguished  counsel  for  the  appellees,  we  deprive 
the  people  of  all  legal  right  to  alter  or  amend  their  government.  Such  a  construc- 
tion is  forced,  and  saps  the  foundation  of  republican  government."3 

In  the  case  of  the  recent  Virginia  convention  the  constituent  act 4 
expressly  required  submission,  and  it  seems  clear  that  the  convention 
in  proclaiming  its  work  in  force  without  a  reference  to  the  people  was 
acting  beyond  its  powers,  and  taking  a  step  little  short  of  revolutionary. 

The  course  of  the  Delaware  convention  would  seem  hardly  less 
irregular  than  that  of  the  Virginia  body,  though  there  was  not  so  much 
of  a  departure  from  precedent  as  in  the  latter  state.  In  Delaware 

1  Miller  v.  Johnson,  92  Ky.  597.  3  Id.  602,  603. 

2  Id.  598.  4  Virginia  Session  Laws,  1901,  262. 


SOME   LAW   AS   TO   POPULAR   RATIFICATION  335 

the  legislature  had  not  only  not  assumed  to  transfer  sovereignty  to  the 
convention,  but  it  had  even  recommended  that  the  instrument  framed 
by  that  body  should  be  submitted  to  the  voters.1 

The  South  Carolina  constituent  act  would  also  seem  to  be  insuffi- 
cient to  delegate  to  a  convention  the  enormous  power  of  enacting  a 
constitution.  The  act,  it  will  be  remembered,  provided  for  a  conven- 
tion merely  "for  the  purpose  of  revising,  amending,  or  changing  the 
constitution."  Nothing  was  said  about  " enacting"  a  new  one. 
The  language  just  quoted  is  similar  to  that  used  in  the  Kentucky 
constitution  of  1850,  prescribing  the  method  of  change  which  was  the 
subject  of  judicial  comment  as  follows :  — 

"  The  people,  always  vigilant  in  the  protection  of  their  rights,  and  being  unwill- 
ing to  leave  that  which  affected  their  inherent  rights  to  the  construction  of  dele- 
gates reasoning  logically  from  different  analogies  existing  in  the  minds  of  each 
delegate,  or  from  selfish  motives,  used  language  that  clearly  limited  the  power 
of  the  delegates  to  the  duty  of  re-affirming,  amending  or  changing  the  constitu- 
tion. They  are  told  that  they  should  have  in  view  —  it  should  be  their  aim  (the 
expression  '  for  the  purpose '  means  just  that  thing)  —  the  re-adopting,  amending 
or  changing  the  constitution.  That  was  to  be  the  business  in  hand,  and  none 
other.  The  language  quoted  does  not  say  that  the  people  surrendered  their 
right  to  adopt  or  reject  the  work  of  the  convention." 2 

And  independent  of  authority,  such  a  conclusion  seems  to  be 
required  upon  elementary  principles.  The  theory  of  our  public 
law,  both  state  and  national,  is  that  sovereignty  resides  in  the  people. 
It  never  belongs  inherently  to  a  limited  body  of  men  such  as  a  con- 
stitutional convention. 

But  we  have  not  yet  determined  the  question  presented  by  the  pro- 
ceedings of  the  latest  Mississippi  and  Louisiana  conventions.  There 
the  constituent  acts  purported  to  authorize  the  conventions  to  " enact" 
constitutions.  In  a  well-known  Mississippi  case  3  the  court  makes 
much  of  this,  and  rests  its  conclusions  on  the  ground  that  the  conven- 
tion was  a  sovereign  body  exercising  powers  "specially  delegated  to 
it  for  the  purpose  and  the  occasion  by  the  whole  electoral  body."  4 

This,  it  will  be  seen,  is  the  theory  of  Judge  Tucker  in  the  early 
Virginia  case  5  and  of  Delegate  Yancy  in  the  Alabama  secession 

1  Delaware  Laws,  1895,  p.  234,  sec.  8.  2  Miller  v.  Johnson,  92  Ky.  601. 

3  Sproule  v.  Fredericks,  69  Miss.  898,  reaffirmed  in  Dixon  v.  State,  74  Miss.  277. 

4  Sproule  v.  Fredericks,  69  Miss.  898.     See  ante,  307,  and  cf.  dicta  in  State  v.  Neal, 
42  Mo.  119. 

5  Kamper  v.  Hawkins,  i  Virginia  Cases,  20. 


336  THE   PEOPLE'S   LAW 

convention.1    It  was  restated  by  Dr.  J.  L.  M.  Curry  in  an  address 
before  the  Louisiana  convention  of  1898  in  the  following  language:  — 

"A  constitutional  convention  is  the  embodiment  of  popular  sovereignty. 
Except  under  the  mutations  of  the  moral  law  and  the  prohibitions  of  the  Federal 
Constitution,  and  possibly  some  restrictions  embodied  in  the  law  summoning 
this  body,  this  body  is  sovereign  and  its  civil  power  is  unlimited.  Its  decisions 
are  ultimate.  For  expediency  sake,  but  not  of  right,  they  may  be  conditioned 
on  popular  approval,  but  such  an  appeal  is  not  essential  to  validity." 2 

This  is,  in  other  words,  the  theory  of  the  delegate  system  as 
opposed  to  that  of  direct  popular  participation. 

On  the  other  hand  Judge  Cooley  says :  — 

"  No  body  of  representatives,  unless  specially  clothed  with  power  for  that 
purpose  by  the  people  when  choosing  them,  can  rightfully  take  definitive  action 
upon  amendments  or  revisions;  they  must  submit  the  result  of  their  deliberations 
to  the  people  —  who  alone  are  competent  to  exercise  the  powers  of  sovereignty  in 
framing  the  fundamental  law  —  for  ratification  or  rejection.  The  constitutional 
convention  is  the  representative  of  sovereignty  only  in  a  very  qualified  sense, 
and  for  the  specific  purpose,  and  with  the  restricted  authority  to  put  in  proper 
form  the  questions  of  amendment  upon  which  the  people  are  to  pass ;  but  the 
changes  in  the  fundamental  law  of  the  State  must  be  enacted  by  the  people  them- 
selves."3 

So  Mr.  Amasa  M.  Eaton  declares :  — 

"A  constitutional  convention  is  not  the  people  in  convention  assembled. 
It  is  only  a  meeting  of  representatives  of  the  people,  it  being  manifestly  impos- 
sible for  the  people  to  assemble  in  convention.  The  people  by  the  vote  of 
the  electors  should  have  an  opportunity  to  accept  or  reject  what  their  repre- 
sentatives have  proposed  as  their  form  of  government."  * 

Elsewhere  the  same  author  says :  — 

1  "History  and  Debates  of  the  Convention  of  the  People  of  Alabama,"  114. 

2  See  Harvard  Law  Review,  XIII,  284. 

3  "Constitutional  Limitations"  (5th  Ed.,  Boston,  1883),  41.     This  passage  was 
doubtless  one  of  those  referred  to  by  the  court  in  Sproule  v.  Fredericks,  69  Miss.  898, 
when  it  said :  "The  theorizing  of  the  political  essayist  and  the  legal  doctrinaire  by  which 
it  is  sought  to  be  established  that  the  expression  of  the  will  of  the  legislature  shall  fetter 
and  control  the  constitution-making  body,  or,  in  the  absence  of  such  attempted  legisla- 
tive direction  which  seeks  to  teach  that  the  constitutional  convention  can  only  prepare 
the  frame  of  a  constitution,  and  recommend  it  to  the  people  for  adoption,  will  be  found 
to  degrade  this  sovereign  body  below  the  level  of  the  lowest  tribunal  clothed  with  or- 
dinary legislative  powers." 

4  "The   Late   Constitutional   Convention   of    South   Carolina,"   American   Law 
Review,  XXXI,  198. 


SOME   LAW   AS  TO   POPULAR   RATIFICATION  337 

"  A  constitutional  convention  no  more  embodies  the  sovereignty  of  the  people 
than  the  legislature  does.  Both  are  but  the  agents  of  the  sovereign  power.  Not 
even  the  vote  of  the  electors  to  accept  the  result  of  a  constitutional  convention  as 
the  supreme  law  of  the  state  without  ratification  by  the  electors  constitutes  a 
convention  the  sovereign  power." l 

It  must  be  remembered  that  in  Mississippi  the  people  were  not  con- 
sulted with  regard  to  calling  the  convention.  The  legislature,  with- 
out referring  the  question  to  the  electors,  passed  the  constituent 
act  and  assumed  to  vest  the  convention  with  power  to  proclaim  a 
constitution.  The  crucial  question  then  is  whether,  without  express 
authority  from  the  sovereign  people,  the  legislature  may  thus  transfer 
sovereignty  to  a  convention.  This  question  the  Supreme  Court  of 
Mississippi  alone  has  thus  far  answered  in  the  affirmative,  and  even 
that  court  seems  to  recognize  the  importance,  if  not  necessity,  of 
popular  ratification,  for  in  a  later  case  2  it  speaks  of 

"  the  great  principle  which  imperatively  demands  that  the  great  organic  law  of 
the  state,  its  constitution,  supreme  and  paramount  over  every  interest,  shall  never 
be  altered  or  changed  except  upon  the  maturest  judgment,  and  by  a  majority 
sufficient  to  warrant  the  conviction  that  the  change  has  met  the  approval  of  in- 
telligent freemen." 

1  "The  Suffrage  Clause  in  the  New  Constitution  of  Louisiana,"  Harvard  Law 
Review,  XIII,  284. 

2  State  v.  Powell,  77  Miss.  582  (1900). 


CHAPTER   XXVI 
RECAPITULATION  AND  RESULTS 

IN  origin,  this  movement  for  popular  participation  in  law-making, 
as  the  preceding  pages  are  an  endeavor  to  show,  is  a  part  and  conse- 
quence of  the  revival  of  democratic  ideas  begun  in  the  sixteenth  cen- 
tury and  introduced  among  the  English-speaking  peoples  by  the 
Calvinists.  In  the  United  States,  popular  ratification  first  appears  in 
those  regions  which  were  settled  by  those  of  the  Calvinist  persuasion ; 
where  they  predominate,  it  first  attains  full  development,  and  where 
they  are  less  numerous  the  beginnings  of  the  movement  are  often 
directly  traceable  to  them,  and  it  finds  lodgment  earlier  than  in  the 
sections  where  they  did  not  settle.  As  it  extends  westward  the  move- 
ment finds  a  new  source  of  growth  in  local  conditions  and  necessities, 
and,  particularly  in  the  agricultural  states  of  the  middle  west  and  the 
mining  states  of  the  Pacific  slope,  it  is  aided,  if  not  inaugurated,  by 
spontaneous  organizations  of  a  primitive  character  much  resembling 
those  in  which  it  first  appeared  among  the  Teutonic  peoples. 

Chronologically,  the  history  of  popular  ratification  as  applied  to 
American  State  Constitutions  may  be  divided  into  three  distinct 
periods.  In  the  first,  lasting  from  1776  to  1821,  constitutions  were 
generally  adopted  without  submission.  This  period  of  forty-five 
years  witnessed  the  adoption  of  no  less  than  twenty-six  state  constitu- 
tions. But  only  six  of  these  were  ratified  by  the  electors,  unless 
we  include  the  second  constitutions  of  South  Carolina  and  Pennsyl- 
vania in  which  there  was  a  ^a^'-submission  to  the  people.  The 
six  in  which  the  electors  actually  voted  on  the  question  of  adopting 
or  rejecting,  were  all  framed  in  the  New  England  states  of  Massa- 
chusetts, New  Hampshire,  Connecticut,  and  Maine.  Provision  had 
also  been  made  elsewhere  for  consulting  the  people  with  reference  to 
future  constitutional  changes,  and  many  suggestions,  proposals,  and 
efforts  had  been  made  to  apply  the  system  in  these  outside  states. 

338 


RECAPITULATION  AND   RESULTS  339 

But  the  fact  remains  that  less  than  one-fourth  of  the  state  constitutions 
during  the  first  forty-five  years  of  our  national  existence  were  actually 
voted  on  by  the  people,  and  that  the  policy  of  Congress  as  expressed 
through  its  enabling  acts  made  that  system  practically  impossible  in 
the  newly  admitted  states. 

A  second  period  covers  the  decade  between  1821  and  1831,  and  is 
a  period  of  transition.  It  begins  with  the  adoption  of  the  second  New 
York  constitution,  which  not  only  established  popular  ratification  in 
the  Empire  State,  but  became  the  model  for  many  of  those  farther 
west.  The  period  ends  with  the  adoption  of  the  second  Virginia 
constitution,  which  performed  a  like  office  for  the  states  to  the  south. 
During  this  decade  the  field  was  evenly  divided  between  the  two 
methods  of  constitution-making.  Six  commonwealths  effected  or 
attempted  changes  in  their  fundamental  codes  —  three  by  consulting 
the  people  and  three  without,  but  the  three  former  were  the  more  in- 
fluential. 

The  third  period  covers  about  forty  years,  and  lasts  from  the  enact- 
ment of  the  Delaware  constitution  in  1831  down  to  the  close  of  the 
reconstruction  era.  In  this  period  popular  ratification  becomes  gen- 
eral. The  epoch  is  one  which  includes  the  culmination  of  the  demo- 
cratic movement  in  the  states  and  the  adoption  by  Congress  of  the 
policy  of  requiring  new  states  to  submit  their  constitutions  to  the  peo- 
ple. During  this  whole  period  only  two  permanent l  state  constitu- 
tions—  that  of  Mississippi  in  1832  and  Arkansas  in  1836  —  were 
adopted  without  receiving  or  recognizing2  popular  ratification.  At 
the  close  of  this  period  only  one  unratified  state  constitution  —  that 
of  Delaware  —  remained,  and  the  system  of  submitting  the  consti- 
tutions to  a  popular  vote  had  apparently  become  not  only  all  but 
universal,  but  also  permanently  established  among  the  states. 

And  while  this  movement  for  popular  ratification  had  been  in  prog- 
ress, the  system  itself  had  been  undergoing  a  process  of  evolution. 
Many  of  the  first  state  constitutions  were  apparently  designed  to  be 
permanent.  No  provision  was  made  for  their  alteration,  and  much 
doubt  was  thereby  thrown  on  the  early  attempts  to  that  end.  Such 
instruments  as  did  authorize  revision  provided  a  system  at  once  cum- 

1  The  abortive  reconstruction  instruments  which  failed  to  receive  recognition  by 
Congress  are  not  considered. 

2  The  Florida  constitution  may  not  have  been  submitted,  but  it  distinctly  provides 
for  submission. 


340  THE   PEOPLE'S   LAW 

brous  and  slow  like  the  Massachusetts  method  of  amendment  by  con- 
vention only,  or  the  Connecticut  plan  of  requiring  approval  by  two 
successive  legislatures.  But,  in  course  of  time,  these  systems  gave 
place  to  simpler  and  more  direct  modes  of  consulting  the  people.  In 
some  states  the  plan  of  appealing  to  the  electors  periodically  has  been 
a  favorite  one,  while  in  others  the  submission  of  amendments  by  a 
majority  vote  of  a  single  legislature  and  their  ratification  by  a  majority 
of  those  voting  has  been  utilized  to  such  an  extent  that  other  methods 
have  proved  unnecessary.  The  latest  improvement  is  the  popular  consti- 
tutional initiative.1  Thus  the  evolution  of  constitution-making  in  the 
United  States  has  kept  pace  with,  if  indeed  it  has  not  actually  out- 
stripped, the  progress  of  the  nation  along  other  lines.  Few  contrasts 
could  be  more  striking  than  that  which  exists  between  the  system  of 
constitution-making  in  vogue  during  the  first  year  of  American  in- 
dependence and  that  which  prevails  at  the  beginning  of  the  twentieth 
century. 

When  one  comes  to  summarize  the  results  of  the  long  struggle  for 
popular  ratification  and  to  estimate  its  effect  upon  those  communities 
which  have  made  it  a  part  of  their  public  law,  one  is  likely  to  notice 
first  of  all  how  it  has  contributed  to  the  permanence  of  those  constitu- 
tions to  which  it  has  been  applied. 

"  A  general  survey  of  this  branch  of  our  inquiry,"  says  Bryce,2  "  leads  to  the 
conclusion  that  the  peoples  of  the  several  States,  in  the  exercise  of  this  their  highest 
function,  show  little  of  that  haste,  that  recklessness,  that  love  of  change  for  the 
sake  of  change,  with  which  European  theorists,  both  ancient  and  modern,  have 
been  wont  to  credit  democracy ;  and  that  the  method  of  direct  legislation  by  the 
citizens,  liable  as  it  doubtless  is  to  abuse,  causes,  in  the  present  condition  of  the 
States,  fewer  evils  than  it  prevents." 

In  this  respect  the  predictions  of  its  opponents  have  signally  failed. 

The  convention  debates3  of  the  period  when  the  principle  of  popular 
ratification  was  first  under  discussion,  and  especially  when  attempts 
were  first  made  to  facilitate  the  submission  of  amendments,  abound 
in  prophecies  that  this  would  lead  only  to  frequent  and  ill-advised 
changes  of  the  fundamental  law.  But  the  contrary  has  proven  to 
be  true.  Of  the  ten  constitutions  proclaimed  during  the  first  two 
years  of  American  independence  the  two  earliest  were  displaced 

1  Michigan,  Art.  XVII ;  Oklahoma,  Art.  V ;  Oregon,  Laws  1903,  p.  244. 

2  "The  American  Commonwealth"  (2d  Ed.),  I,  457. 

8  Cf.  Debates  of  the  Pennsylvania  Convention  of  1837. 


RECAPITULATION   AND   RESULTS  341 

within  two  years,  barely  one-half  survived  the  eighteenth  century, 
and  most  of  these  soon  became  the  objects  of  popular  dislike  and  at- 
tack, from  which  they  were  saved  with  difficulty.  The  ephemeral 
character  of  the  French  constitutions  has  become  proverbial,1  and  we 
shall  see  how  France  has  been  deprived  of  the  benefits  of  a  real 
popular  ratification.  Her  people  have  had  the  shadow  but  not  the 
substance  of  submission. 

Note,  however,  the  contrast  where  the  people  have  had  the  largest 
possible  share  in  the  process.  The  one  American  constitution  of  the 
revolutionary  period  which  has  lasted  until  the  present  day  is  that  of 
Massachusetts,  in  making  which  the  electors  participated  to  an  extent 
never  surpassed  before  or  since.  Nor  is  this  an  isolated  instance. 
States  like  Maine  and  Wisconsin  which  retain  their  original  constitu- 
tions after  a  long  period,  are  states  in  which  the  people  were  care- 
fully consulted  at  every  step,  and  given  full  opportunity  then  and 
since  to  make  changes  in  the  fundamental  law.  And  the  reason  for 
the  permanence  of  instruments  adopted  in  this  way  is  not  far  to  seek. 
When  the  electors  are  allowed  to  exercise  their  prerogatives,  and 
have  done  so,  the  issues  are  settled,  and  the  verdict  is  apt  to  be  for  a 
long  time  accepted  as  conclusive.  But  when  the  power  to  proclaim 
a  constitution  has  been  assumed  and  exercised  by  a  small  body  of 
men  like  a  convention,  there  has  been  no  opportunity  to  determine  \ 
whether  the  result  is  satisfactory  to  a  majority  of  the  people,  and  i 
there  is  always  likely  to  be  found  an  element  refusing  to  accept  it  as  ' 
such,  and  agitating  for  a  change. 

"  By  the  popular  vote  upon  constitutional  measures,"  observes  Borgeaud,2 
"  the  two  essential  conditions  of  an  amendment  procedure,  so  hard  to  harmonize, 
yet  indispensable,  are  attained;  namely,  the  overcoming,  on  the  one  hand,  of 
the  rigidity  of  written  texts,  by  facilitating  amendments,  and  on  the  other  the 
stability  and  prestige  of  the  constitution.  If  the  first  of  these  conditions  is  ful- 
filled, the  principal  defect  which  the  partisans  of  an  exclusively  customary  public 
law  find  in  written  constitutions  is  corrected,  and  if  the  second  is  fulfilled,  the 
character  which  constitutes  their  principal  merit,  is  preserved.  In  this  way  the 
advantages  of  the  English  system  are  secured  and  the  institutions  of  the  demo- 

"'  Have  you  a  copy  of  the  French  constitution  ?'  was  asked  of  a  bookseller  during 
the  second  French  Republic.  'We  do  not  deal  in  periodical  literature,'  was  the  reply. 

"  In  the  preceding  century  a  similar  question  was  answered  by  the  offer  of  the 
Almanach  Royal."  —  Foster,  "  Commentaries  on  the  Constitution  of  the  United 
States,"  i. 

2  "Adoption  and  Amendment  of  Constitutions"  (Hazen's  Trans.,  Chicago,  1895), 
346. 


342  THE  PEOPLE'S   LAW 

cratic  state  obtain  a  fundamental  guarantee  which  that  system  would  be  powerless 
to  give.  This  twofold  merit  answers  the  obviously  characteristic  need  of  the 
times ;  ceaseless  and  rapid  progress,  effected  without  violence  and  firmly  securing 
its  achievements  by  a  powerful,  universally  respected  law." 

It  is  hardly  too  much  to  claim  the  constitutional  convention  as  a 
product  of  the  movement  for  popular  ratification.  For  while  that 
body  has  often  met  and  labored  without  calling  upon  the  people, 
still,  in  its  origin,  it  seems  to  be  directly  connected  with  popular  con- 
stitution-making. We  have  seen  how  the  first  suggestion  of  such  a 
body  came  from  Sir  Harry  Vane  the  Younger,  as  a  culmination  of  the 
Puritan  democratic  movement  in  England,  following  the  proposed 
"  Agreement  of  the  People,"  which  provided  for  popular  approval.1 
In  America,  legislatures,  as  a  rule,  and  not  conventions  framed  those 
constitutions  of  the  revolutionary  period  which  were  proclaimed  with- 
out submission  to  the  people.  But  in  Massachusetts,  whose  previous 
political  history  had  rendered  submission  a  necessary  step  in  consti- 
tution-making, the  voters  rejected  a  proposed  constitution,  mainly,  as 
we  have  seen,  because  it  was  not  framed  by  a  convention.  The 
most  memorable  of  all  American  state  constitutional  conventions  was 
thus  a  direct  result  of  the  movement  for  a  popularly  ratified  funda- 
mental code.  And  from  that  time  on  the  advocates  of  submission 
in  every  state  sought  to  realize  their  purpose  through  the  calling  of  a 
constitutional  convention  which  should  be  required  to  refer  its  work 
to  the  people.  Had  it  accomplished  nothing  else,  this  movement  for 
popular  ratification  would  have  been  one  of  the  most  fruitful  phases 
of  institutional  history.  Of  the  institution  which  has  come  out  of  it 
—  the  constitutional  convention  —  a  thoughtful  observer 2  has  said  :  — 

"  Through  the  hundred  years  of  national  existence  it  has  received  little  but 
favorable  criticism  from  any  quarter.  It  is  still  an  honor  to  have  a  seat  in  it. 
The  best  men  in  the  community  are  still  eager  or  willing  to  serve  in  it,  no  matter 
at  what  cost  to  health  or  private  affairs.  I  cannot  recall  one  convention  which 

1  Ante,  Chap.  VI. 

2  E.  L.  Godkin,  "The  Decline  of  Legislatures,"  Atlantic  Monthly  (1897),  LXXX, 
52.     Cf.  the  following  from  Bryce,  "The  American  Commonwealth"  (2d  Ed.,  Chicago, 
1890),  I,  456:    "The  appointment  of  a  Constitutional  Convention  is  an  important 
event,  which  excites  general  interest  in  a  State.     Its  functions  are  weighty  and  difficult, 
far  transcending  those  of  the  regular  legislature.     Hence  the  best  men  in  the  State 
desire  a  seat  in  it,  and,  in  particular,  eminent  lawyers  become  candidates,  knowing  how 
much  it  will  affect  the  law  they  practice.     It  is  therefore  a  body  superior  in  composi- 
tion to  either  the  Senate  or  the  House  of  a  State.     Its  proceedings  excite  more  interest ; 
its  debates  are  more  instructive;   its  conclusions  are  more  carefully  weighed." 


RECAPITULATION   AND    RESULTS  343 

has  incurred  either  odium  or  contempt.  Time  and  social  change  have  often  frus- 
trated its  expectations  or  have  shown  its  provisions  for  the  public  welfare  to  be 
inadequate  or  mistaken,  but  it  is  very  rare  indeed  to  hear  its  wisdom  and  integ- 
rity questioned.  In  looking  over  the  list  of  those  who  have  figured  in  conventions 
of  the  State  of  New  York  since  the  Revolution,  one  finds  the  name  of  nearly  every 
man  of  weight  and  prominence ;  and  few  lay  it  down  without  thinking  how  happy 
we  should  be  if  we  could  secure  such  service  for  our  ordinary  legislative  bodies." 

But  probably  the  most  important  result  of  submitting  constitu- 
tions to  a  popular  vote  is  its  educational  influence  upon  the  elector- 
ate. The  familiarity  of  the  American  voter  with  constitutional  ques- 
tions as  compared  with  those  of  other  nationalities  is  well  known, 
and  the  reason  is  not  far  to  seek.  When  the  voter  became  a  legis- 
lator and  a  constitution-maker  he  received  a  new  stimulus  to  famil- 
iarize himself  with  the  subject-matter  of  laws  and  constitutions. 
Moreover,  an  electorate  whose  direct  sanction  is  necessary  to  the 
enactment  of  the  state's  fundamental  code  is  likely  to  feel  a  higher 
sense  of  responsibility  and  a  more  vital  and  personal  interest  in  the 
state's  welfare.  And  this  is  a  phase  of  the  subject  whose  importance 
can  hardly  be  overestimated. 

"  The  better  constituted  a  state  is,"  declares  Rousseau,1  "  the  more  do  public 
affairs  outweigh  private  ones  in  the  minds  of  the  citizens.  There  is,  indeed,  a 
much  smaller  number  of  private  affairs,  because  the  amount  of  the  general  pros- 
perity furnishes  a  more  considerable  portion  to  that  of  each  individual,  and  less 
remains  to  be  sought  by  individual  exertions.  In  a  well-conducted  city-state 
every  one  hastens  to  the  assemblies ;  while  under  a  bad  government  no  one  cares 
to  move  a  step  in  order  to  attend  them,  because  no  one  takes  an  interest  in  the 
proceedings,  since  it  is  foreseen  that  the  general  will  will  not  prevail,  and  so  at 
last  private  concerns  become  all-absorbing.  Good  laws  pave  the  way  for  better 
ones;  bad  laws  lead  to  worse  ones.  As  soon  as  any  one  says  of  affairs  of  the 
state,  '  Of  what  importance  are  they  to  me  ?'  we  must  consider  that  the  State  is 
lost." 

Attempts  have  been  made,  not,  indeed,  without  show  of  plausi- 
bility, to  prove  that  the  American  elector  fails  to  appreciate  the  im- 
portance of  his  function  in  constitution-making.  Thus  Judge  Simeon 
E.  Baldwin,  speaking  of  a  state  where  submission  has  been  followed 
from  the  first  says : 2  — 

1  "Contrat  Social"  (Trozer's  Trans.,  London,   1895),  Chap.  XV,  186,  187. 

2  The  Three  Constitutions  of  Connecticut,  New  Haven  Historical  Society  Papers 
(New  Haven,  1894),  V,  241.     See  for  a  similar  line  of  argument  against  the  Swiss 
Referendum;    Hart,    "Vox  Populi   in    Switzerland,"    The   Nation,"    LIX,    193-194; 
Deploige,  "The  Referendum  in  Switzerland"  (Trevelyan's  Trans.,  London,  1898),  289. 


344  THE  PEOPLE'S   LAW 

"  Experience  shows  that  much  less  interest  is  taken  by  the  people  in  propo- 
sitions for  constitutional  amendments  than  in  elections  to  office.  The  personal 
element  is  always  wanting,  and,  generally,  that  of  party  advantage. 

"  The  strife  between  Hartford  and  New  Haven  for  holding  the  state  capital 
was  of  special  interest  to  every  citizen,  and  great  efforts  were  made  to  call  out  a 
full  vote  on  the  part  of  each,  yet  a  fifth  of  the  electors  who  cast  their  ballots  for 
state  officers  in  1873  cast  none  on  the  constitutional  amendment.  And  the  change 
to  biennial  elections,  in  1884,  was  carried  by  little  more  than  a  fourth  of  those 
who  took  part  in  the  general  election,  the  total  vote  for  state  officers  being  con- 
siderably more  than  double  that  cast  on  the  proposed  amendment.  The  pro- 
hibition question  has  excited  as  much  interest  as  any  not  connected  with  the  imme- 
diate success  of  one  of  our  great  political  parties,  but  at  the  decisive  vote  in  1889, 
only  72,746  ballots  were  cast,  though  those  for  governor  at  the  last  preceding 
state  election  numbered  154,226,  out  of  a  total  registry  of  167,529. 

"  These  figures  tend  to  show  that  the  plan  of  amending  the  constitution  by  a 
referendum  to  the  people  is  less  likely  to  secure  their  interest  in  the  work  than 
that  of  acting  by  their  delegates  in  a  constitutional  convention." 

The  numerous  unsuccessful  attempts  at  submission  in  Delaware 
have  already  been  referred  to,  though  the  figures  were  not  given. 
In  1887,  out  of  a  total  electorate  of  over  31,000,  less  than  one-half 
took  the  trouble  to  vote  on  the  question  of  calling  a  convention.  In 
1891,  when  the  voters  appear  to  have  increased  to  35,000,  there  were 
still  less  than  fifty  per  cent  who  cast  their  ballots.1 

In  Nebraska,  in  1896,  the  electors  were  invited  to  vote  on  no  less 
than  twelve  amendments  to  the  constitution.  The  total  vote  for  the 
office  of  governor  in  that  year  was  217,768,  while  on  the  very  im- 
portant amendment  relating  to  the  increase  in  the  number  of 
Supreme  Court  judges,  there  are  reported  as  having  been  cast  only 
122,475,  or  about  sixty-one  per  cent  of  those  cast  for  gubernatorial 
candidates.2  Indeed,  proposed  amendments  have  been  submitted  in 
that  state  in  all  but  two  or  three  of  the  even  years  since  i88i,3  and 
until  the  present  decade  only  one  of  these  was  declared  adopted, 
though  the  trend  is  manifestly  toward  greater  popular  interest 4  and 

1  Oberholtzer,  "The  Referendum  in  America"  (2d  Ed.)  135 ;  McPherson's  "  Hand- 
book, 1888  (72);   1892  (136). 

2  See  Tecumseh  National  Bank  v.  Saunders,  51  Neb.  802. 

3  See  an  article  by  Judge  Charles  B.  Letton  in  the  Omaha  Bee,  October  5,  1902. 

4  On  the  amendment  providing  for  a  state  railway  commission,  submitted  Nov.  4, 
^906,  the  favorable  vote  was  147,472  out  of  194,692;   but  this  result  was  reached 
by  counting  as  favorable  all  "  straight  "  party  votes  (all  political  parties  having  de- 
clared for  the  amendment)  pursuant  to  Nebraska  Laws,  1901,  Chap.  29,  the  validity 
of  which  was  upheld  by  the  Supreme  Court  in  State  v.  Winnett,  no  N.  W.  Rep.  1113, 
following  State  v.  Laylin,  69  Ohio  St.     Important  amendments  were  likewise  over- 
whelmingly adopted  in  1908. 


RECAPITULATION   AND   RESULTS  345 

most  of  the  rejected  amendments  received  a  majority  of  the  votes 
cast  thereon,  being  lost  by  reason  only  of  the  constitutional  require- 
ment of  a  majority  of  all  votes  cast  at  the  election. 

Moreover  there  were  qualifying  circumstances  in  most  of  these 
cases.  Thus  the  Delaware  and  at  least  one  of  the  Connecticut 
instances  were  special  elections,  which  hardly  ever  afford  a  fair  test 
of  the  real  interest  of  the  voter. 

" It  has  been  found,"  says  a  writer1  on  this  subject,  "that  it  is  impossible 
to  poll  a  full  vote  at  special  elections,  whether  for  constitutional  amendments, 
city  charters,  authorizations  of  bond  issues,  filling  official  vacancies  or  anything 
else;  but  when  an  amendment  is  submitted  at  a  general  election,  about  two- 
thirds,  as  a  rule,  of  those  who  vote  for  the  heads  of  the  tickets,  express  their  opin- 
ions upon  it." 

A  light  vote  on  constitutional  amendments  may  also  frequently 
be  explained  by  the  comparative  unimportance  of  some,  or,  on  the 
other  hand,  by  the  strong  probability  of  their  adoption  on  account  of 
their  general  acceptance,  or  for  some  other  reason. 

In  some  quarters  the  electors  appear  to  have  manifested  an  in- 
terest in  constitutional  questions  considerably  greater  than  in  the 
states  above  mentioned.  Thus  in  California2  it  seems  that  in  a 
period  of  a  dozen  years,  during  which  some  twenty-eight  amendments 
were  submitted,  an  average  of  about  two-thirds  of  those  voting  at  the 
election  availed  themselves  of  their  right  to  pass  upon  these  proposed 
changes  in  the  fundamental  law.  On  the  question  of  extending  the 
franchise  to  women,  which  was  submitted  at  a  presidential  election, 
83.4  per  cent  of  those  voting  for  presidential  candidates  registered 
their  choice,  while  the  lowest  constitutional  vote  during  the  period 
was  39.4  per  cent,  which  was  cast  on  an  amendment  to  which  there 
was  little  opposition. 

At  the  general  election  in  June,  1906,  the  vote  on  constitutional 
amendments  in  Oregon  ranged  from  two-thirds  to  seven-eighths  of 
that  cast  for  officials;  in  1908  it  was  even  greater.3 

1  S.  E.  Moffett,  "The  Constitutional  Referendum  in  California,"  Political  Science 
Quarterly,  XIII,  i,  14. 

2  Id.     Mr.  Moffett  appends  a  table  showing  the  percentage  of  the  total  vote  cast 
on  amendments  as  follows:    1884,  79.3;    1886,  68.6;    1890,  39.4;    1892,  62.5;    1894, 
64.6;    1896,  68.2.     Cf.  the  same  writer's  "Suggestions  on  Government"  (Chicago, 
1894),  Chap.  XVI. 

3  The  vote  for  governor  in  1906  was  96,715,  while  the  vote  cast  on  the  equal  suf- 


346  THE   PEOPLE'S   LAW 

In  Texas  also  and  other  states  of  the  South  and  West  the  figures 
reveal,  on  the  part  of  the  electorate,  an  increasing  interest  in  consti- 
tution-making, as  well  as  other  phases  of  direct  popular  action.1  But 
that  this  interest  should  be  less  lively  than  that  usually  manifested  in 
the  election  of  public  officials  is  not  strange.  Direct  action  of  the 
people  in  the  making  of  laws  fell  into  disuse  among  most  modern 
races,  as  we  have  seen  early  in  their  history,  and  its  revival  is  com- 
paratively recent.  Applied  to  state  constitutions,  it  has  come  into 
general  use  within  a  half  century.  Popular  election  of  officials,  on 
the  other  hand,  is  a  function  of  the  ancient  folkmoot  which  has  never 
disappeared.  In  England,  as  afterward  in  America,  it  has  been  con- 
tinuously exercised  from  the  earliest  period,  and  it  is  only  natural 
that  an  electorate  thus  schooled  should  be  attracted  by  a  chance  to 
vote  for  candidates  more  even  than  by  the  opportunity  to  express  its 
views  of  constitutions  or  amendments.  But  as  the  latter  function  be- 
comes better  understood  and  its  exercise  more  frequent,  it  is  not  too 
much  to  expect  the  privilege  to  be  more  highly  prized  and  more  gener- 
ally availed  of,  with  a  corresponding  educational  influence  upon  the 
elector. 

It  is  sometimes  urged  that  modern  legislation  is  a  process  too  com- 
plex to  be  carried  on  successfully  by  the  average  voter.  Indeed,  this 
is  one  of  the  stock  objections  to  the  Swiss  referendum.  Thus  M. 
Simon  Deploige,  in  his  indictment  of  that  system  observes : 2  - 

frage  amendment,  which  failed  of  adoption,  was  83,977.  See  Review  of  Reviews, 
XXXIV,  143,  176;  Haynes,  "The  Education  of  Voters,"  Political  Science  Quarterly, 
XXII,  494.  Two  years  later,  when  nineteen  distinct  proposals  were  submitted,  the  vote 
on  that  relating  to  equal  suffrage  reached  more  than  ninety-five  thousand,  while  the 
highest  vote  for  candidates  from  the  whole  state  was  about  one  hundred  and  twelve 
thousand.  Equity,  X,  87,  88,  112. 

1  E.g.  the  "Direct   Primary"  and  "The  Referendum."     In  this  connection  the 
tendency  to  enlarge  constitutions  by  including  and  submitting  in  the  form  of  amend- 
ments provisions  formerly  considered  as  belonging  to  the  field  of  general  legislation 
has  been  the  occasion  of  much  adverse  comment.     See  Wilson,  "The  State,"  sec.  896; 
Eaton,  "The  Late   Constitutional   Convention  of   South  Carolina,"   American  Law 
Review,  XXXI,  198.      But  it  appears  to  have  been  overlooked  that  this  has  afforded 
the  electorate  a  wider  scope  for  the  exercise  of  its  legislative  power. 

2  "The  Referendum  in  Switzerland"  (Trevelyan's  Trans.,  London,  1898),  288. 
President   A.  Lawrence  Lowell  of  Harvard  University  has  claimed  that  the  diffi- 
culties would  be  multiplied  if  the  system  were  adopted  in  the  United  States.     "The 
relations  of  the  executive  and  legislative  in  Switzerland,"  he  says,  "are  very  different 
from  what  they  are  in  this  country,  for  a  great  deal  of  what  we  should  consider  legisla- 
tion falls  into  the  province  of  the  Swiss  executive.     The  laws  are  passed  in  a  compara- 
tively simple  and  general  form,  and  the  executive  has  authority  to  complete  their  details 


RECAPITULATION   AND   RESULTS  347 

"  The  elector  who  writes  Aye  or  No  on  his  ballot-paper  performs  an  act, 
the  apparent  simplicity  of  which  has  attracted  the  democrats,  but  this  act  is,  as 
a  matter  of  fact,  a  very  complex  one.  It  requires  that  each  voter  should  be  able 
not  only  to  understand  why  legislation  is  necessary,  but  also  should  be  able  to 
judge  whether  the  law  in  question  is  adequate  to  meet  the  case.  Nothing  effec- 
tual has  as  yet  been  devised  which  would  assist  the  elector  in  forming  a  personal 
opinion  on  such  a  subject." 

But  it  may  well  be  asked  if  this  is  not,  after  all,  an  indictment  of 
popular  government  in  general  rather  than  merely  of  popular  legis- 
lation, and  whether  as  a  matter  of  fact  the  people  are  not  now,  in  the 
last  analysis,  required  to  determine  these  questions,  but  to  do  so  under 
a  system  which  disguises  and  conceals  the  fact  that  they  are  involved  ? 
When  the  American  electorate  is  called  upon  to  choose  a  president  or 
a  congress,  or  when  the  British  voter  is  asked  to  register  his  choice 
for  members  of  parliament,  the  result  usually  determines  the  fate  of 
important  measures  vitally  affecting  the  national  policy.  But  these 
are  not  the  questions  most  discussed  in  the  campaign  before  the 
people.  Instead  of  simplifying  the  voter's  task,  the  present  system 
too  often  complicates  it  by  confusing  the  merits  of  a  question  with 
other  considerations,  like  the  personality  of  candidates,  or  the  necessity 
of  party  success. 

"  It  is  often  said,"  observes  Mr.  Lecky,1  who  certainly  cannot  be  suspected 
of  predilections  toward  democracy,  "  that  there  are  large  classes  of  questions  on 
which  such  a  popular  opinion  could  be  of  little  worth.  To  this  I  have  no  difficulty 
in  subscribing.  It  is  very  doubtful  whether  a  really  popular  vote  would  have 
ratified  the  Toleration  Act  in  the  seventeenth  century,  or  the  abolition  of  the 
capital  punishment  of  witches  in  the  eighteenth  century,  or  Catholic  Emanci- 
pation in  the  nineteenth  century,  or  a  crowd  of  other  measures  that  might  be 
enumerated.  It  is  now,  however,  too  late  to  urge  such  an  argument.  Democ- 
racy has  been  crowned  king.  The  voice  of  the  multitude  is  the  ultimate  court 
of  appeal,  and  the  right  of  independent  judgment,  which  was  once  claimed  for 
the  members  of  Parliament,  is  now  almost  wholly  discarded.  If  the  electorate 
is  to  judge  policies,  it  is  surely  less  likely  to  err  if  it  judges  them  on  a  clear  and 

and  provide  for  their  application  by  means  of  decrees  or  ordinances.  Partly  for  this 
reason,  and  partly  on  account  of  the  small  size  of  the  country,  the  number  of  laws  passed 
in  a  year  is  far  less  than  with  us.  ...  Is  it  not  evident  that  while  a  people  may  vote 
intelligently  on  five  or  ten  laws  a  year,  it  is  absurd  to  suppose  that  they  could  vote  in- 
telligently on  four  hundred?  How  could  they  be  expected  to  consider  independently 
each  one  of  four  hundred  different  measures?  Is  it  not  clear  what  they  would  do? 
They  would  not  attempt  to  consider  each  law  separately,  nor  even  to  understand  it  at 
all,  but  they  would  vote  on  them  all  as  their  party  leaders  directed."  —  "The  Refer- 
endum in  Switzerland  and  in  America,"  Atlantic  Monthly,  LXXIII,  523,  524. 
1  "Democracy  and  Liberty,"  I,  289,  290. 


348  THE   PEOPLE'S   LAW 

distinct  issue.     In  such  a  case  it  is  most  likely  to  act  independently  and  not  at 
the  dictation  of  party  wirepullers." 

But  whatever  may  be  said  concerning  the  competency  of  the 
average  man  to  pass  on  general  legislation,  the  American  system  of 
submitting  constitutional  questions  to  a  popular  vote  will  certainly 
not  suffer  by  comparison  with  other  systems.  No  monarchical  coun- 
try can  point  to  such  achievements  in  constitutional  development. 
In  substance  and  contents  the  American  constitutions  are  certainly 
the  peers  of  any  others,  while  in  practical  operation  they  have  no 
rivals.  Nowhere  else  are  written  constitutions  so  effective,  so  scru- 
pulously observed  by  officials,  so  generally  respected  and  jealously 
guarded  by  citizens.  The  framers  of  the  first  popularly  adopted 
American  state  constitution  declared,  as  we  have  seen,  their  intention 
to  establish  "a  government  of  laws  and  not  of  men."  And  the  most 
rapid  approach  toward  the  realization  of  that  ideal  has  occurred 
while  the  people  were  being  called  upon  to  share  in  the  making -of 
their  fundamental  codes.  In  this  the  words  of  William  Penn,  written 
more  than  two  centuries  ago,  find  striking  confirmation. 

"  And  as  paradoxical  as  any  may  please  to  think  it,"  he  says,1  "  'tis  the  great 
interest  of  a  Prince  that  the  People  should  have  a  share  in  the  making  of  their 
own  laws;  Where  'tis  otherwise,  they  are  no  Kings  of  Free-men,  but  Slaves,  and 
those  their  enemies  for  making  them  so.  Leges  nulla  alia  causa  nos  tenent,  quam 
quid  judicio  populi  receptae  sunt:  '  The  Laws,'  saith  Ulpian,  '  do  therefore  oblige 
the  people,  because  they  are  allowed  of  by  their  judgment.'  And  Gratian,  in 
"Dec.  Distinct."  4:  Turn  demum  humanae  leges  habent  vim  suam,  cum  fuerint 
non  modo  institutae,  sed  etiam  firmatae  approbatione  communitatis  ;  '  It  is  then, 
saith  he,  '  that  human  laws  have  their  due  force,  when  they  shall  not  only  be  de- 
vised, but  confirmed  by  the  approbation  of  the  people.' 

"  i.  It  makes  men  diligent,  and  increaseth  Trade,  which  advances  the 
revenue.  For  where  men  are  not  free,  they  will  never  seek  to  improve,  because 
they  are  not  sure  of  what  they  have,  and  less  of  what  they  get. 

"  2.  It  frees  the  Prince  from  the  jealousy  and  hate  of  his  people;  and  conse- 
quently, the  troubles  and  danger  that  follow;  and  makes  his  province  easy  and 
safe. 

"  3.  If  any  inconvenience  attends  the  execution  of  any  law,  the  Prince  is  not 
to  be  blamed;  It  is  their  own  fault  that  made  it." 

1  "Select  Works  of  William  Penn"  (England's  Present  Interest  Considered),  376 
et  seq. 


c 

POPULAR    LEGISLATION   IN    THE    UNITED  STATES 

CHAPTER  XXVII 
THE  STATUTORY  REFERENDUM  AS  TO  PARTICULAR  MEASURES 

WHILE  the  principle  of  popular  ratification  was  becoming  an 
established  part  of  the  process  of  adopting  and  amending  state  con- 
stitutions in  America,  steps  were  likewise  being  taken  to  employ  it 
in  the  enactment  of  ordinary  laws  not  purporting  to  be  parts  or 
amendments  of  constitutions. 

But  while  these  two  phases  of  popular  participation  in  law-making 
are  in  their  nature  distinct,  they  were  directly  connected  in  origin. 
The  statutory  referendum  was  really  the  revival  of  a  colonial  practice 
which  had  fallen  into  disuse  except  where  perpetuated  through  the 
agency  of  the  town  meeting.  The  constitutional  referendum,  how- 
ever, preserved  the  form  and  rendered  the  revival  easy.  It  is  not 
strange,  therefore,  that  we  find  the  statutory  referendum  first  em- 
ployed in  the  nineteenth  century  in  a  state  where  it  had  been  in  use 
during  the  colonial  era,  nor  that  its  reappearance  was  as  a  phase  of 
popular  constitution-making.  There  was  no  imitation  of  Swiss  or 
other  foreign  models,  then,  —  merely  a  natural  transition  from  one 
form  of  the  referendum  to  another.  So  imperceptibly,  indeed,  did 
the  change  take  place  that  the  new  system  had  spread  and  been  em- 
ployed in  most  of  the  states,  for  at  least  some  measures,  before  its  full 
significance  was  even  noticed.  It  will  be  profitable  to  trace  its  his- 
tory in  certain  of  the  states  where  it  has  reached  its  greatest  develop- 
ment, and  where  it  was  first  applied  to  each  of  the  various  classes  of 
measures  which  are  now  recognized  as  belonging  to  its  field. 

We  have  seen1  how  in  Maine,  in  the  early  years  of  the  nineteenth 
century,  the  voters  in  their  town  meetings  considered  and  determined 

1  Ante,  197  et  seq. 
349 


350  THE   PEOPLE'S    LAW 

the  question  of  separation  from  Massachusetts  under  a  reference  from 
the  General  Court  of  that  state.  This,  while  not  strictly  an  amend- 
ment to  any  existing  constitution,  was  yet,  in  a  sense,  a  constitutional 
question. 

To  the  step  thus  taken,  which,  although  something  of  a  departure, 
was,  nevertheless,  quite  in  line  with  her  traditions,  an  impetus  was 
given  in  Massachusetts  by  the  second  amendment  adopted  by  the 
Constitutional  Convention  of  1820,  providing  for  the  establishment 
of  municipal  governments,  but  only  "with  the  consent  and  on  the 
application  of  a  majority  of  the  inhabitants  .  .  .  present  and  voting." 
The  very  next  year  the  General  Court  passed  "an  act  establishing 
the  city  of  Boston  "  1  providing,  however,  that  the  act  should  be 
void  "unless  the  inhabitants  .  .  .  shall,  by  written  vote,  determine 
to  adopt  the  same  within  twelve  days."  2  At  the  same  time  the 
General  Court  passed  "an  act  to  regulate  the  administration  of  jus- 
tice within  the  county  of  Suffolk,"  3  and  this  was  declared  to  be  of  no 
effect  unless  the  charter  above  mentioned  "shall  be  accepted  by  the 
inhabitants  of  the  town  of  Boston,  pursuant  to  the  provision  therein 
made."  4 

The  legislation  thus  enacted,  and  which  was  subsequently  ap- 
proved in  the  manner  designated,  constitutes  probably  the  earliest 
instance  of  a  provision  for  popular  ratification  in  a  legislative  munici- 
pal charter.5  It  also  provided  the  first  subject  for  a  judicial  test  of 
the  validity  of  such  legislation.  In  a  case  8  which  came  before  the 
Supreme  Judicial  Court  of  Massachusetts  in  1826,  the  act  last  men- 
tioned was  directly  assailed  because  of  its  provision  as  to  the  manner 
of  taking  effect. 

"This  objection,  for  aught  we  see,"  said  the  court,  per  Parker,  J.,  "stands 
unsupported  by  any  authority  or  sound  argument.  Why  may  not  the  legislature 
make  the  existence  of  any  act  depend  upon  the  happening  of  any  future  event? 
Constitutions  themselves  are  so  made.  .  .  .  We  see  no  impropriety,  certainly 
no  unconstitutionality,  in  giving  the  people  the  opportunity  to  accept  or  reject 
such  provisions." 

1  General  Laws  of  Massachusetts,  vol.  II,  Chap,  no,  p.  588. 

2  Id.  sec.  31.  3  Id.  Chap.  109,  p.  583.  *  Id.  sec.  17. 

6  Such  provisions  have  since  become  common  in  Massachusetts.  The  Supreme 
Judicial  Court  having  held  that  such  charters  could  not  be  provided  by  general  law 
(Larcom  v.  Olin,  160  Mass.  102),  a  specific  act  is  passed  for  each  municipality,  but 
usually  with  provisions  for  popular  acceptance.  See  Acts  and  Resolves,  1896,  Chaps. 
261,  366,  379,  438,  441;  1897,  Chaps.  172,  239,  283. 

8  Wales  v.  Belcher,  3  Pick.  (Mass.)  508. 


THE   REFERENDUM   AS   TO   PARTICULAR  MEASURES       351 

Thus  to  Massachusetts,  which  gave  to  the  world  the  first  popularly 
ratified  state  constitution,  belongs  the  further  distinction  of  having 
revived  and  perpetuated  1  the  popular  legislation  of  her  colonial  era. 

Some  other  states,  which  were  without  the  machinery  furnished 
by  the  town  meeting,  began  about  this  same  period  to  confer  upon 
the  people  the  right  to  legislate  directly  upon  one  of  the  subjects  most 
frequently  considered  in  town  meetings  —  the  public  school.  A 
Maryland  statute  2  of  1826  provided  for  the  establishment  of  a  system 
of  primary  public  instruction,  but  also  provided  that  the  act  should 
not  go  into  effect  in  any  county  unless  a  majority  of  those  voting 
therein  at  an  ensuing  election  should  have  declared  in  its  favor. 

Pennsylvania 

About  a  decade  later  Pennsylvania  organized  its  common  school 
system  by  a  series  of  acts,3  which  left  it  to  the  people  of  each  township 
or  district  to  say  whether  or  not  the  law  should  become  operative 
therein.  Commencing  with  this  school  legislation,  provisions  for  con- 

1  "This  practice  has  been  not  infrequent  here  from  an  early  date,  both  in  local 
statutes  and  statutes  concerning  corporations,   and  has  been  held  constitutional." 
—  Opinion  of  Barker,  J.,  160  Mass.  600. 

This  was  an  advisory  opinion  in  answer  to  a  query  of  the  House  of  Representatives 
as  to  whether  it  would  be  constitutional  to  grant  municipal  suffrage  to  women,  con- 
ditioned upon  the  acceptance  of  the  act  generally  or  locally  by  the  voters  or  by  those 
thereby  enfranchised.  Four  of  the  justices,  while  recognizing  the  doctrine  that  matters 
of  local  legislation  might  be  referred  to  the  voters  of  the  locality,  were  unable  to  con- 
sider the  suffrage  as  of  that  class  and  answered  in  the  negative.  Of  the  three  remain- 
ing justices  one  answered  partly  in  the  affirmative  and  two  entirely  so,  one  of  whom, 
Mr.  Justice  Holmes,  now  of  the  Federal  Supreme  Court,  declared  that  the  contrary 
view  seemed  "an  echo  of  Hobbes'  theory  that  the  surrender  of  sovereignty  by  the  people 
was  final." 

Ballots  are  now  provided  for  each  town  meeting  to  vote  on  the  question  of  granting 
liquor  licenses.  Suppl.  to  Pub.  Stats.,  1889-1895,  885,  sec.  282. 

Certain  street  railways  may  operate  as  common  carriers  if  authorized  by  a  two- 
thirds  vote  in  the  towns  through  which  they  pass.  Massachusetts  Acts  and  Resolves, 
1896,  Chaps.  409  (8),  437. 

In  1899  the  General  Court  passed  an  eight-hour  law  (Acts  and  Resolves,  1899,  Chap. 
344),  providing  that  it  should  "not  take  effect  in  any  city  or  town  until  accepted  by  a 
majority  of  the  voters,"  and  another  act  similarly  to  become  effective,  permitting  cer- 
tain street-car  tracks  in  Boston  to  be  replaced.  Id.  Chap.  398,  sec.  3. 

2  Maryland  Laws,  1825,  Chap.  162. 

In  Burgess  v.  Pue,  2  Gill  (Md.)  n,  the  validity  of  this  act  was  assumed  by  the 
Court  of  Appeals,  although  the  point  was  not  directly  in  question. 

3  Act  of  April  15,  1835 ;  Parke  and  Johnson's  Digest  of  the  Laws  of  Pennsylvania, 
I,  185;  Act  of  June  13,  1836,  Id.  II,  547. 


352  THE   PEOPLE'S   LAW 

suiting  the  people  are  not  uncommon  in  the  Keystone  State.  The 
tendency  was  doubtless  promoted  by  the  movement  resulting  in  the 
constitution  of  1838,  with  its  provisions  for  popular  amendment,  but 
the  voters  were  invited  to  act  on  other  than  constitutional  questions 
and  without  express  constitutional  authority.  In  1842  the  legislature 
empowered  supervisors  of  highways  to  subscribe  for  capital  stock  in 
turnpike  companies  to  such  an  amount  "as  may  be  agreed  upon  by 
the  tax  payers  of  said  respective  townships."  *  Four  years  later  an 
act  was  passed  "  authorizing  the  citizens  of  certain  counties  to  decide 
by  ballot  whether  the  sale  of  ...  liquors  shall  be  continued."  2  This 
was  declared  unconstitutional  by  the  Supreme  Court  in  the  following 
year  on  the  ground  that  it  attempted  to  delegate  legislative  power,3 
and  a  rather  strained  effort  was  made  to  distinguish  the  act  from  the 
school  legislation  of  the  previous  decade  which  was  conceded  to  be 
valid.  In  1847  tne  question  of  dividing  a  certain  township  was  sub- 
mitted to  the  voters  thereof,4  and  this  was  upheld  by  the  Supreme 
Court,5  distinguishing  its  former  decision  on  the  ground  that  the 
power  now  delegated  was  not  legislative.  An  act,6  passed  in  1870, 
left  it  to  the  "citizens"  of  Philadelphia  to  determine  by  ballot  a  site 
for  its  public  buildings,  and  the  constitution  adopted  three  years 
later  required  a  referendum  to  relocate  the  state  capital,7  to  incur 
public  debts  beyond  a  certain  limit,8  or  to  adopt  a  city  charter.9  In 
1877  the  legislature  enacted  a  statute  authorizing  the  voters  of  a 
county  to  determine  the  question  of  erecting  a  poor-house,10  and  the 
following  year  another  imposing  a  tax  on  dogs  for  the  purpose  of 
paying  damages  to  sheep  owners,  but  providing  that  the  act  should 
not  become  operative  in  any  county  until  ratified  by  a  majority  of 
its  electors.11  It  seems  difficult  to  distinguish  this  in  principle  from 

1  Pennsylvania  Laws,  1842,  233,  providing  for  a  vote  on  the  question  at  the  written 
request  of  twelve  tax-payers.  2  Id.,  1846,  248. 

3  "What  is  this  more  or  better  than  the  pro  jet  of  a  law  to  be  submitted  for  the 
sanction  of  a  distinct  and  independent  tribunal,  whose  will  is  to  determine  its  future 
existence  or  continued  nonentity."  — Parker  v.  Comm.,  6  Pa.  St.  527. 

4  Pennsylvania  Laws,  1847,  256.     The  method  of  submission  was  somewhat  in- 
direct.    The  legislature  appears  to  have  provided  (though  not  in  the  act  itself)  for  the 
boundaries  of  a  new  township  to  be  carved  out  of  the  old,  and  the  voters  were  asked  to 
decide  whether  or  not  the  new  one  should  be  continued. 

5  Comm.  v.  Judges,  8  Pa.  St.  91.  8  Pennsylvania  Laws,  1870,  677. 

7  Art.  Ill,  sec.  28,  borrowed  apparently  from  Texas. 

8  Art.  IX,  sec.  8,  borrowed  from  Rhode  Island. 
8  Art.  XV,  sec.  i,  borrowed  from  Massachusetts. 

10  Pennsylvania  Laws,  1877,  40.  u  Id.,  1878,  198. 


THE   REFERENDUM   AS   TO   PARTICULAR  MEASURES       353 

the  act  declared  unconstitutional  in  the  first  of  the  decisions  above 
cited,  even  on  the  ground  mentioned  in  the  second,  but  the  law  of 
1878  seems  not  to  have  been  challenged  in  the  courts.  An  act,1 
passed  in  1885,  authorized  a  majority  of  the  electors  of  any  county 
to  render  the  "fence  law"  inoperative  therein  by  voting  for  its  repeal, 
but  this  was  held  2  repugnant  to  the  constitutional  inhibition  of  a 
"local  or  special  law,"  though  the  Supreme  Court  expressly  declined 
to  discuss  the  question  whether  it  also  effected  a  delegation  of  a  legis- 
lative power.  Provisions  for  leaving  it  to  the  people  of  boroughs  to 
decide  the  question  of  providing  fire  protection,3  water-works,4  and 
electric  light  plants,5  have  appeared  in  recent  years. 

Rhode  Island 

The  constitution  of  Rhode  Island,  adopted  in  1842,  revived  one 
of  the  ancient  privileges  of  its  people  by  requiring  6  their  consent, 
except  in  certain  emergencies,  before  debts  above  fifty  thousand  dol- 
lars could  be  incurred  by  the  state  or  its  credit  pledged.  This  prece- 
dent, as  we  shall  see,  was  widely  followed,  and  similar  provisions  are 
now  found  in  the  constitutions  of  more  than  one-third  of  the  states.7 
Prior  8  to  1844  the  Rhode  Island  legislature  applied  the  referendum 
principle  in  passing  a  general  law  for  impounding  stray  live-stock, 
but  providing  9  that  "any  town  may,  at  a  legal  meeting,  pass  a  vote 
exempting  itself  or  any  part  thereof  from  the  operation  of  this  act," 
or 10  extending  its  provisions  to  certain  other  animals.  By  a  some- 
what similar  method  the  legislature,  in  1853,  effected  an  indirect  sub- 
mission of  a  prohibitory  liquor  law  to  the  people.  In  order  to  avoid 
the  force  of  certain  decisions n  in  other  states,  by  which  legislation  of 
the  same  general  purpose  had  been  annulled  as  a  delegation  of  legis- 
lative power,  a  complete  act12  was  here  passed,  and  the  electors  in  the 
towns  were  asked  to  express  their  will,  a  provision  being  added  that 
in  case  of  an  adverse  vote  the  law  should  be  inoperative.13  The  vote 

1  Pennsylvania  Laws,  1885,  142. 

2  Frost  v.  Cherry,  122  Pa.  St.  417.  4  Pennsylvania  Laws,  1885,  163. 

3  Brightly's  Purdon's  Digest,  241.  6  Id.,  1891,  90,  91,  92. 
8  Art.  IV,  sec.  13.     Poore,  "  Charters  and  Constitutions,"   II.  1607. 

7  Oberholtzer,  "The  Referendum,"   183  et  seq. 

8  The  act  appears  in  Rhode  Island  Public  Laws,  (1844)  369,  but  the  date  of  pas* 
sage  is  not  given.  9  Id.  sec.  6.  10  Id.  sec.  7. 

11  Especially  Rice  v.  Foster,  4  Harr.  (Del.)  479,  Parker  v.  Comm.,  6  Pa.  St.  507. 

12  Rhode  Island  Acts  and  Resolves,  1853  (Jan.  Sess.)  232.  w  Id.  sec.  19. 

2  A 


354  THE   PEOPLE'S   LAW 

was  favorable  to  the  measure,  and  it  was  subsequently  upheld  by 
the  Supreme  Court,1  though  that  tribunal  indicated  by  way  of  obiter 
dicta  that  the  contrary  result  could  not  have  had  the  effect  of  repeal- 
ing the  act. 

More  recently  the  principle  has  been  extended  by  authorizing 
municipal  electors  of  any  town  or  city  to  vote  on  the  exemption  of 
manufacturing  property  from  taxation,2  and  on  the  acceptance  of  a 
charter.3 

Texas 

During  the  period  just  reviewed,  the  people  of  Texas  were  mak- 
ing some  interesting  experiments  with  the  referendum.  The  consti- 
tution of  the  Texan  republic,  adopted  in  1836,  provided4  that  "no 
new  county  shall  be  established  unless  it  be  done  on  the  petition  of 
one  hundred  free  male  inhabitants."  The  state  constitution,  adopted 
in  1845,  contained  a  clause  5  designed  "to  settle  permanently  the  seat 
of  government"  by  submitting  the  question  to  the  people.  The 
present  instrument  of  1876  is  most  prolific  in  provisions  for  the 
referendum  which  is  required  in  order  to  locate  the  state  university 6 
and  the  college  for  colored  youth  ;7  to  divide  counties,8  relocate  county 
seats,9  levy  local  taxes  for  the  construction  of  public  works,10  and  the 
support  of  schools,11  or  to  prohibit  the  sale  of  intoxicating  liquors  in 
counties  or  subdivisions  thereof.12  The  last  provision  has  been  re- 
enforced  by  elaborate  legislation,13  which  has  been  declared  valid  by 
the  courts,14  and  frequently  applied  so  that  the  Texas  "local  option 
law"  is  not  only  in  force  throughout  a  large  portion  of  that  state, 
but  has  been  the  model  of  extensive  legislation  elsewhere. 

The  same  constitution  empowered15  the  legislature  to  enact  "laws 
for  the  regulation  of  live  stock,"  etc.,  but  provided  that  any  such  as 

1  State  v.  Copeland,  3  R.I.  33. 

2  Rhode  Island  Public  Laws,  1891-1892,  Chap.  1088.         4  Art.  IV,  sec.  u. 

3  Id.  1897,  Chap.  516,  sec.  28.  5  Art.  Ill,  sec.  35. 

8  Art.  VII,  sec.  10.     The  question  was  submitted  in  1881.     Texas  Laws,  1881,  77. 

7  Constitution,  Art.  VII,  sec.  14.  9  Art.  IX,  sec.  2. 

8  Art.  IX,  sec.  i.  10  Art.  XI,  sec.  7. 

11  Art.  XI,  sec.  10.      This  was  supplemented  by  an  act  authorizing  an  additional 
tax  for  school  buildings  to  be  levied. 

12  Art.  XVI,  sec.  20.  13  Texas  General  Laws,  1876,  Chap.  XXXIII. 
14  Holley  v.  State,  14  Tex.  App.  505;  Ex  parte  Lynn,  19  Id.  293;   Steele  v.  State, 

Id.  425.  16  Art.  XVI,  sec.  23. 


THE   REFERENDUM    AS   TO   PARTICULAR   MEASURES       355 

were  local  should  "be  submitted  to  the  freeholders  of  the  section  to  be 
affected  thereby."    This  has  also  been  supplemented  by  legislation.1 


Wisconsin 

The  people  of  Wisconsin  have  enjoyed  an  unusually  full  experi- 
ence with  the  referendum  in  ordinary  legislation.  As  early  as  1841, 
and  while  still  a  territory,  its  legislature  authorized  the  electors  of  a 
county  to  locate  its  "seat  of  justice,"  2  those  of  a  town  to  designate  its 
polling  place,3  and  those  of  various  towns  to  accept  or  reject  the  acts 
incorporating  them.4  An  act  of  1846  referred  the  question  of  county 
division  to  the  voters.5 

The  New  England  township  was  early  implanted  in  Wisconsin, 
which  has  always  been  distinguished  for  its  highly  developed  form  of 
local  government.6  The  township  system  was  itself  the  subject  of  a 
referendum,7  and  the  electors  in  the  towns  were  clothed  with  exten- 
sive powers,  including  the  levy  of  taxes  for  schools,  roads  and  bridges, 
poor  relief,  and  other  charges,8  and  the  enactment  of  by-laws.9 

The  first  constitution  of  Wisconsin,  adopted,  as  we  have  seen, 
after  a  careful  consultation  of  the  people,  contained  several  provisions 
for  the  referendum,  some  of  which  had  not  appeared  elsewhere.  It 
provided  for  extending  the  right  of  suffrage,  not  by  constitutional 
amendment,  but  "by  law,"  which  however,  should  not  "be  in  force 
until  .  .  .  submitted  to  a  vote  of  the  people  .  .  .  and  approved  by 
a  majority."  10  Advantage  was  taken  of  this  in  the  following  year, 
when  the  law  was  referred11  and  ratified.  The  constitution  further 
required12  the  submission  of  the  question  of  chartering  banks  and  of 
general  laws  providing  for  such  charters,  and  the  people  have  voted 
upon  the  adoption  of  such  laws  more  frequently  in  Wisconsin  than  in 

1  Texas  General    Laws,   1876,  Chap.  98.     The  voters  even  decide  "whether  or 
not  three  barbed  wires  without  a  board  or  plank  shall  constitute  a  lawful  fence  in  such 
county  or  subdivision."  —  Sayles'  "  Annotated  Civil  Statutes,"  II,  sec.  500. 

2  Wisconsin  Laws,  1840-1841,  77.     5  Id.,  1846,  22. 

3  Id.  136.  6  Howard,  "  Local  Constitutional  History,"  158. 

4  Id.  90,  91,  1 1 6.  7  Wisconsin  Laws,  1842,  65. 

8  Wis.  Rev.  Stats.,  1849,  Chap.  XII,  sec.  2.     These  have  since  been  extended  so 
as  to  include  town  buildings,  libraries,  the  support  of  destitute  veterans,  and  the  erection 
of  soldiers'  monuments.     Wis.  Stats.  (Sanborn  and  Berryman),  sees.  776,  937.     Cf.  sec. 
670. 

9  Wis.  Rev.  Stats.,  1849,  Chap.  XII,  sec.  3.  u  Wisconsin  Laws,  1849,  Chap.  137. 
10  Wis.  Const.,  1848,  Art.  Ill,  sec.  i,  subdiv.  4.     12  Wis.  Const.,  Art.  XI,  sec.  5. 


356  THE  PEOPLE'S   LAW 

any  other  state.1  Other  clauses  in  the  constitution  require  a  referen- 
dum for  the  division  of  counties 2  and  the  removal  of  county  seats.3 

Independently  of  express  constitutional  sanction,  the  legislature 
in  1869  passed  "an  act  establishing  a  board  of  Public  Works  in  the 
city  of  Milwaukee,"  4  with  a  clause  providing  that  it  should  be  void 
unless  the  electors  of  that  city  "by  vote  determine  to  accept  the  same."5 
The  validity  of  this  act  was  challenged  in  the  courts  but  upheld,  the 
Supreme  Court  following  the  Vermont  decisions  in  preference  to  those 
of  New  York  and  Delaware.8 

Municipalities  were  empowered  in  1897  by  popular  vote  to  extend 
aid  in  the  construction  of  railroads ; 7  in  1875,  to  establish  and  main- 
tain high  schools ; 8  and  in  1889  to  determine  whether  intoxicating 
liquors  should  be  sold  within  their  limits.9  In  1897,  the  legislature,  in 
addition  to  submitting  the  new  banking  code,10  also  passed  acts  to 
regulate  the  nomination  of  candidates  for  office  n  and  the  granting  of 
municipal  franchises,12  each  providing  that  it  should  become  operative 
in  a  municipality  only  when  adopted  by  a  majority  of  its  electors  after 
being  submitted  pursuant  to  a  petition  from  ten  per  cent.  The  most 
conspicuous  recent  example  of  the  referendum  in  Wisconsin  was  the 
adoption  in  1904  of  the  direct  primary  law,13  whose  submission  was 
the  final  stage  in  a  legislative  contest  of  years  for  a  reformed  nominat- 
ing system. 

The  experience  of  the  states  above  mentioned  has  been  repeated 
in  many  others.  Indeed,  by  the  last  quarter  of  the  nineteenth  cen- 
tury there  were  few  in  which  the  statutory  referendum  had  not  been 

1  Under  this  clause  provisions  were  submitted  in  1851,  1852,  1858,  1861,  1862, 
1866,  1867,  1868,  and  1876.  Annotated  Statutes  of  Wisconsin  (1889),  I,  1210,  Reviser's 
note. 

A  banking  code  was  submitted  by  the  legislature  of  1897  (Laws,  1897,  Chap.  303) 
and  ratified  in  1898. 

Acts  relating  to  banking  not  submitted  to  the  people  were  held  void  in  Van  Steen- 
wyck  v.  Sackett,  17  Wis.  645;  Brower  v.  Haight,  18  Id.  102  ;  State  v.  Hastings,  12  Id. 

47- 

The  act  of  1866,  which  was  submitted,  was  declared  valid  by  the  Supreme  Court. 

Smith  v.  Janesville,  26  Wis.  291.  2  Art.  XII,  sec.  7. 

3  Id.  sec.  8.  This  was  applied  at  the  first  session  of  the  legislature.  See  Wis- 
consin Laws,  1848,  77. 

Wisconsin  Private  and  Local  Laws,  1869,  Chap.  401.  8  Id.  1889,  Chap.  521. 

Id.  sec.  37.  10  Id.  1897,  Chap.  303. 

State  ex  rel.  Attorney- General  v.  O'Neill,  24  Wis.  149.  "  Id.  Chap.  312. 

Wisconsin  Laws,  1872,  Chap.  182.  12  Id.  Chap.  370. 

Id.  1875,  Chap.  323.  u  Id.  1903,  Chap.  451. 


THE   REFERENDUM   AS   TO   PARTICULAR   MEASURES      357 

employed  in  the  adoption  of  some  measure,  while  for  certain  sub- 
jects, particularly  local  measures,  the  expenditure  of  public  money 
and  the  location  of  seats  of  government,  the  referendum  had  quite 
generally  come  to  be  considered  the  appropriate  method.  Neverthe- 
less the  widespread  movement,  originating  mainly  in  the  few  states 
whose  legislative  history  is  reviewed  above,  was  only  partial  and 
sporadic  in  its  results.  Its  full  development  must  be  sought  in  an- 
other movement  whose  initial  stage  forms  the  subject  of  the  ensuing 
chapter. 


CHAPTER  XXVIII 

THE  INITIATIVE  AND  REFERENDUM  AS  TO  ANY  MEASURE 

WE  have  seen  that  neither  the  initiative  nor  the  referendum  is  new 
even  in  America,  that  both  were  employed  in  colonial  Rhode  Island 
before  the  middle  of  the  seventeenth  century ; l  that  the  initiative,  as 
early  as  the  third  year  of  the  Revolutionary  War,  was  embodied  into 
the  first  Georgia  constitution ; 2  and  that  it  was  proposed  and  nearly 
adopted  in  the  Pennsylvania  convention 3  of  1837,  and  introduced 
in  a  modified  form  into  the  Virginia  instrument 4  of  1850.  The 
referendum  has  had  a  much  more  extensive  history,  being  frequently 
employed  in  colonial  times,  especially  in  New  England,  and  during 
the  nineteenth  century  spreading  into  many  states,  particularly  in 
local  legislation,  while  the  constitutional  referendum,  adopted  in  all 
save  the  single  state  of  Delaware,  has  familiarized  the  American 
people  with  the  practice  of  themselves  ratifying  their  fundamental 
laws.  But  the  revival  and  combination  of  the  two  systems  in  such  a 
way  as  to  include  all  legislation  are  recent.5  Public  interest  in  the 
subject  appears  to  have  been  first  aroused  in  our  time  by  the  publica- 
tion, about  a  score  of  years  since,  of  the  works  of  Mr.  (now  Ambassa- 
dor) Bryce,6  and  of  Dr.  Borgeaud,7  whose  luminous  comparison  of  our 
institutions  with  those  of  the  Swiss  was  a  revelation  to  most  Ameri- 
cans. More  than  ten  years  have  now  elapsed  since  the  subject  first 
passed  from  academic  discussion  to  practical  legislation,  and  it  seems  a 
fitting  time  to  review  the  progress  of  the  movement  and  estimate  its 
results. 

1  Ante,  Chap.  VII.  3  Proceedings  and  Debates,  XII,  58,  84. 

2  Art.  LXIII.  4  Art.  IV,  sec.  5. 

5  This  is  even  more  true  of  England.     So  late  as  1863  Mr.  Freeman  said :  "  Nobody 
has  ever  proposed  that  every  adult  male  should  vote  in  the  making  of  laws,  but  only 
in  the  choosing  of  lawgivers."  —  "History  of  Federal  Government,"  72,  note. 

6  "The  American  Commonwealth"  (1888),  I,  448  et  seq. 

7  "Rise  of  Modern  Democracy  in  Old  and  New  England"  (1894) ;  "Adoption  and 
Amendment  of  Constitutions"  (1895). 

358 


INITIATIVE   AND   REFERENDUM   AS  TO  ANY  MEASURE      359 


A .    Beginnings  of  tJie  Movement 

The  first  formal  adoption  in  America  of  the  initiative  and  referen- 
dum as  applicable  to  all  legislation  was  inaugurated  by  a  joint  resolu- 
tion of  the  legislature  of  South  Dakota  in  1897,  proposing  an  amend- 
ment to  the  state's  constitution.1  It  provided  that 

"The  legislative  power  of  the  state  shall  be  vested  in  a  legislature  which  shall 
consist  of  a  senate  and  house  of  representatives  except  that  the  people  expressly 
reserve  to  themselves  the  right  to  propose  measures  which  measures  the  Legis- 
lature shall  enact  and  submit  to  a  vote  of  the  electors  of  the  state  and  also  the 
right  to  require  that  any  laws  which  the  legislature  may  have  enacted  shall  be 
submitted  to  a  vote  of  the  electors  of  the  state  before  going  into  effect  (except 
such  laws  as  may  be  necessary  for  the  immediate  preservation  of  the  public  peace, 
health  or  safety,  support  of  the  state  government  and  its  existing  public  insti- 
tutions)." 2 

The  section  further  provides  that  not  more  than  five  per  cent  of 
the  electors  need  petition  to  invoke  its  provisions,  that  the  governor's 
veto  power  shall  not  be  applicable  thereto,  and  that  the  system  shall 
apply  to  municipalities.3 

1  South  Dakota  Laws,  5th  Sess.,  Chap.  XXXIX. 

2  Id.  sec.  2.     The  exception  clause  in  brackets  was  afterward  construed  by  the 
Supreme  Court,  in  connection  with  other  constitutional  provisions,  to  include  legislative 
acts  passed  with  the  emergency  clause  to  which,  it  was  held,  the  amendment  did  not 
apply.     State  ex  rel.  Lavin  v.  Bacon,  14  South  Dakota  394.     This,  it  will  be  seen,  might 
curtail  considerably  the  scope  of  the  referendum,  since  the  legislature  might  decide  to  in- 
sert an  emergency  clause  in  each  act.     The  decision  is  based,  however,  upon  the  pecul- 
iar wording  of  the  South  Dakota  constitution. 

3  South  Dakota  Laws,  1897,  Chap.  XXXIX,  sec.  2. 

In  the  same  year,  but  a  little  more  than  a  month  later,  the  Nebraska  legislature 
passed  an  act  extending  the  referendum  to  any  "  municipal  subdivision  upon  a  vote 
of  the  electors  which  may  be  initiated  by  petition."  Nebraska  Laws,  1897,  Chap. 
XXXII;  Nebraska  House  Journal,  1897,  1160. 

The  Illinois  legislature  passed  "an  act  providing  for  an  expression  of  opinion  by 
electors  on  questions  of  public  policy  at  any  general  or  special  election."  The  initia- 
tive must  be  taken  by  ten  per  cent  of  the  registered  voters  of  the  state  or  twenty-five 
per  cent  of  those  of  a  smaller  subdivision.  Illinois  Laws,  1901,  198. 

In  1905,  the  Texas  legislature  enacted  an  elaborate  election  law  (Texas  Gen. 
Laws,  1905,  first  called  Sess.  Chap.  XI,  sec.  142)  which  provided,  inter  alia, — 

"Whenever  delegates  are  to  be  selected  by  any  political  party  to  any  state  or  county 
convention  by  primary  election  or  primary  convention,  or  candidates  are  instructed 
for  or  nominated ;  it  shall  be  the  duty  of  the  chairman  of  the  county  or  precinct  execu- 
tive committee  of  said  political  party  upon  application  of  ten  per  cent  of  the  members 
...  to  submit  at  the  time  and  place  of  selecting  said  delegates  any  proposition  desired 
to  be  voted  on  by  said  voters  and  the  delegates  selected  at  that  time  shall  be  considered 
instructed  for  whichever  proposition  for  which  a  majority  of  the  votes  are  cast."  De- 


360  THE   PEOPLE'S   LAW 

The  proposal  came  before  the  people  in  November  of  the  follow- 
ing year,  and  was  adopted  by  a  pronounced  majority.1  It  required 
the  legislature  to  "make  suitable  provisions  for  carrying  [it]  into 
effect,"  2  and  at  its  ensuing  session  that  body  passed  an  act  providing 
the  method  of  invoking  the  privileges  of  the  amendment  in  the  case 
of  state  legislation,3  and  another  making  it  applicable  to  municipal 
ordinances  and  resolutions.4  For  a  long  time  its  provisions  were 
not  utilized,5  but  a  referendum  was  demanded  of  the  legislative  act 
of  1907  relating  to  divorce  and  it  was  ratified  Nov.  3, 


Utah 

The  next  state  to  adopt  the  initiative  and  referendum  was  Utah. 
Its  legislature  in  1899  passed  a  joint  resolution  7  proposing  a  consti- 
tutional amendment  embodying  the  new  system,  but  in  different 
phraseology  from  that  employed  in  the  South  Dakota  provision. 
After  reciting  that  the  law-making  power  shall  be  vested  in  the  people 
as  well  as  the  legislature,  it  provided  that  — 

"The  legal  voters,  or  such  fractional  part  thereof,  of  the  state  of  Utah  as 
may  be  provided  by  law,  under  such  conditions  and  in  such  manner  and  within 
such  time  as  may  be  provided  by  law,  may  initiate  any  desired  legislation  and 
cause  the  same  to  be  submitted  to  a  vote  of  the  people  for  approval  or  rejection, 
or  may  require  any  law  passed  by  the  legislature  (except  those  laws  passed  by 
a  two-thirds  vote  of  the  members  elected  to  each  house  of  the  legislature)  to  be 
submitted  to  the  voters  of  the  state  before  such  law  shall  take  effect."  ' 

A  subsequent  clause  made  the  same  provision  applicable  to  "any 
legal  subdivision  of  the  state,"  and  "the  law-making  body"  thereof.9 
The  entire  proposal  was  voted  upon  at  the  election  in  November, 
1900,  and  adopted  by  a  majority  of  nearly  three  to  one.10 

tails  as  to  the  manner  of  invoking  the  system  are  also  provided,  and  have  already  been 
applied.     See  Referendum  News,  Vol.  I,  No.  8,  p.  9. 

1  23,816  as  against  16,483.     South  Dakota  Laws,  7thSess.,  1901,  XII,  note.     Gov- 
ernor Lee,  in  his  message  to  the  legislature  of  1899,  closed  as  follows  a  passage  devoted 
to  praise  of  the  new  system :    "  The  large  plurality  by  which  the  amendment  was  ratified 
at  the  polls  indicates  how  generally  its  simple  provisions  were  understood  and  how  popu- 
lar they  were  with  the  masses  who  will  be  beneficiaries  of  their  successful  operation." 
South  Dakota  House  Journal,  6th  Sess.  (Pierre,  1899),  131,  132. 

2  South  Dakota  Laws,  sth  Sess.  Chap.  XXXIX,  sec.  2.    %     •  Arena,  XXXVIII,  400. 

3  Id.  6th  Sess.  Chap.  93.  7  Utah  Senate  Jour.  3d  Sess.,  453. 

4  Chap.  94.  8  Id. 

8  New  York  State  Library  Report,  1902,  939.  9  Id. 

10  19,219  as  against  7786.     Report  of  Utah  Secretary  of  State,  1899-1900,  46. 


INITIATIVE   AND   REFERENDUM   AS   TO   ANY   MEASURE      361 

Notwithstanding  this  rather  emphatic  expression  of  popular  ap- 
proval, the  movement  seems  to  have  made  as  yet  little  further  prog- 
ress in  Utah.  Governor  Wells,  in  his  Message  *  of  1901,  called 
attention  to  the  fact  that  legislation  was  necessary  in  order  to  carry 
these  provisions  into  effect,  and  it  is  apparent  that  this  is  even  more 
true  than  in  South  Dakota,  since  by  the  express  terms  of  the  Utah 
amendment  the  time,  conditions,  and  number  requisite  to  invoke  its 
provisions  are  left  to  be  "provided  by  law."  No  such  legislation, 
however,  appears  to  have  been  enacted  up  to  this  time. 


B.     The  System  Extended 

In  Oregon  the  movement  toward  the  new  system  of  legislation, 
while  slower  in  maturing  by  reason  of  the  constitutional  requirement 2 
of  action  by  two  successive  legislatures,  really  began  earlier  than  in 
Utah  and  has  been  much  more  fruitful  of  results.  On  February  6, 
iSQQ,3  the  governor  approved  a  concurrent  resolution  4  of  both  legis- 
lative branches  proposing  a  constitutional  amendment  providing  for 
the  initiative  and  referendum  in  more  elaborate  phraseology  than  in 
either  the  South  Dakota  or  Utah  amendments,  and  containing  most 
of  the  provisions  of  the  former,  though  not  including  municipal  legis- 
lation. The  second  step  was  taken  at  the  session  of  1901,  when  an 
act 5  was  passed  formally  submitting  the  amendment  to  the  voters. 
It  came  before  them  at  the  June  election  of  1902,  and  was  ratified  by 
a  majority  of  about  eleven  to  one.6 

While  the  Oregon  amendment  was  more  complete  in  detail  than 
any  yet  adopted,  it  nevertheless  contemplated  further  legislation  affect- 
ing procedure,  and  this  was  provided  in  1903  by  a  comprehensive 
act7  which  applied  not  only  to  ordinary  statutes  but  to  constitutional 
amendments  as  well,  thus  greatly  reducing  the  time  required  in  pro- 
curing the  adoption  of  the  latter,  and  which  permitted  the  distribution 
by  the  Secretary  of  State  of  literature  bearing  on  the  proposed  amend- 
ments and  furnished  by  the  advocates  and  opponents  thereof.8 

1  P.  39.  2  Oregon  Const.,  Art.  XVII,  sec.  i. 

3  The  Utah  resolution  was  passed  on  March  9  of  the  same  year. 

4  Oregon  Laws,  1899,  1129.  6  Id.  1901,  4. 

6  62,024  as  against  5668,  the  total  vote  being  92,920;  New  York  State  Library 
Rep.  1903,  723.  7  Oregon  Laws,  1903,  244. 

8  Oregon  Laws,  1903,  p.  244,  sec.  8.     See  a  discussion  of  this  feature  by  Haynes, 


362  THE   PEOPLE'S   LAW 

The  amendment  had  yet,  however,  to  run  the  gantlet  of  the  courts. 
In  the  year  last  mentioned  an  action  reached  the  Supreme  Court  in 
which  the  validity  of  the  amendment  was  assailed  on  several  grounds, 
one  of  which  was  that  it  violated  that  article  of  the  Federal  Constitu- 
tion guaranteeing  to  each  state  "a  republican  form  of  government." 
The  court  in  an  exhaustive  opinion  upheld  the  amendment  in  toto, 
and  as  to  the  objection  just  mentioned,  observed : l  — 

"The  initiative  and  referendum  amendment  does  not  abolish  or  destroy  the 
republican  form  of  government  or  substitute  another  in  its  place.  The  repre- 
sentative character  of  the  government  still  remains.  The  people  have  simply 
reserved  to  themselves  a  larger  share  of  legislative  power." 

Once  established  as  the  law  of  the  state,  the  people  have  not  been 
slow  to  avail  themselves  of  the  new  system.  Through  it  they  have 
already  adopted  among  others  a  direct  primary  law,2  a  local  option 
law,3  a  corrupt  practices  act,4  constitutional  amendments  extending 
the  system  to  municipal  legislation,  and  allowing  the  referendum  as 
to  items  and  parts  of  acts,5  and  providing  for  proportional  representa- 
tion,6 and  laws  imposing  taxes  upon  the  gross  earnings  of  public 
service  corporations,7  and  prohibiting  free  passes.8  As  this  is  but  the 
partial  fruitage  9  of  only  three  general  elections,  it  would  seem  that 
the  system  is  destined  to  play  a  large  part  in  the  legislative  history  of 
the  Sunset  State. 

Nevada 

As  in  Oregon  so  in  Nevada,  which  was  the  next  state  to  take  action 
on  the  referendum,  the  constitution  10  requires  the  approval  of  two 
successive  legislatures.  The  Nevada  legislature  of  1901  adopted  a 
joint  and  concurrent  resolution  n  embodying  the  principle  of  the  refer- 
endum, but  not  providing  for  the  initiative.  At  the  session  of  1903 
this  resolution  does  not  appear  to  have  been  specifically  approved, 
but  another  was  adopted  with  almost  the  same  phraseology  as  the 
Oregon  amendment.12  The  one  ratified  by  the  people  at  the  general 

"The  Education  of  Voters,"  Political  Science  Quarterly,  XXII,  484.     The  entire  act 
was  superseded  by  the  more  elaborate  provisions  of  Chap.  226  of  Oregon  Laws,  1907. 

1  Kadderly  v.   Portland,   44   Oreg.    118,    145.     See  a  discussion  of  this  case  in 
Arena,  XXXII,  128,  and  cf.  In  re  Pfahler,  88  Pac.  Rep.  270;  150  Cal.  71;    Hopkins 
v.  Duluth,  81  Minn.  189 ;  Ex  parte  Wagner,  95  Pac.  Rep.  (Okla.)  435. 

2  Oregon  Laws,  1905,  Chap.  I.  3  Id.  Chap.  II.  4  Equity,  X,  87. 

6  N.  Y.  State  Library  Bulletin  of  Legislation,  no  (1906),  115  c.      °  Equity,  X,  87. 

7  Oregon  Laws,  1907,  Chaps.  I,  II.  10  Nev.  Const.,  Art.  XVI,  sec.  i. 

8  i  Referendum  News,  No.  9,  p.  3.  n  Nevada  Laws,  2oth  Sess.  (1901),  139. 
8  Id.  12  Id.  2ist  Sess.  (1903),  231. 


INITIATIVE   AND   REFERENDUM   AS  TO   ANY  MEASURE       363 

election  of  1904  appears,1  however,  to  have  been  the  proposal  of 
1901,  and  as  such  it  is  inserted  in  the  official  edition  of  the  constitution 
as  amended,2  perhaps  on  the  theory  that  the  second  resolution  neces- 
sarily included  and  involved  approval  of  the  first.  Inasmuch,  how- 
ever, as  the  constitution  expressly  requires3  that  "such  proposed 
amendment  .  .  .  shall  be  agreed  to"  by  the  second  legislature,  it 
would  seem  to  preclude  the  substitution  of  a  new  amendment,  though 
embodying  in  substance  the  old.  In  the  latest  official  edition  4  of 
the  Nevada  constitution  the  amendment  in  question  is  omitted. 
Nevertheless  a  referendum  was  taken  of  the  act  of  Jan.  29,  1908, 
providing  for  an  armed  police  force,  which  was  adopted.5 

Missouri 

In  1903  the  legislature  of  Missouri  adopted  a  joint  and  concurrent 
resolution,6  proposing  a  constitutional  amendment  which  provided, 
in  much  the  same  phraseology  as  the  Oregon  clause,  for  the  initiative 
and  referendum.  It  came  before  the  electors  of  Missouri,  but  failed 
of  adoption  7  —  seemingly  the  first  instance  of  such  a  failure  where 
the  system  has  been  placed  fairly  before  the  people.  The  legislature 
of  1907,  however,  resubmitted  the  proposal  8j  in  slightly  differing 
phraseology,9  and  the  electors  again  voted  on  the  question  at  the 
general  election  of  1908,  this  time  favorably  by  a  margin  of  over 
30,000. 

Montana 

The  Montana  legislature  submitted  a  proposed  initiative  and 
referendum  amendment10  in  1905.  It  appears  to  have  been  modelled 
upon  the  Oregon  provision,  and  went  to  the  people  at  the  general 
election  of  1906,  when  it  was  adopted.11  Although  quite  specific  in  its 
provisions,  it  was  supplemented,  in  1907,  by  an  elaborate  piece  of 

Nevada  Laws,  22d  Sess.  (1905),  339,  340.     4  Nevada  Laws,  23d  Sess.  (1907),  486. 
Id.  5  Equity,  X,  43. 

Art.  XVI,  sec.  i.  e  Missouri  Laws,  1903,  280. 

Id.  1905,  312-325;  New  York  State  Library  Legislative  Bulletin,  1904,  115  b. 
Missouri  Laws,  1907,  452. 

A  petition  of  eight  per  cent  is  required  for  the  exercise  of  the  initiative  and  ten 
per  cent  for  the  referendum,  while  municipal  legislation  is  not  expressly  included. 

10  Montana  Laws,  1905,  Chap.  61. 

11  New  York  State  Library  Index  of  Legislation,  1906,  115  b. 


364  THE   PEOPLE'S   LAW 

legislation l  relating  to  procedure  embodying  inter  alia  the  Oregon 
plan  of  instructing  the  voters  by  means  of  literature  distributed  by 
the  Secretary  of  State,  but  furnished  by  those  initiating  or  opposing  a 
measure. 

Delaware 

Although  Delaware  is  distinguished  as  the  one  state  in  which  the 
people  have  had  no  share  in  adopting  or  amending  a  constitution, 
and  although  even  the  statutory  referendum  has  been  almost  unknown 
there,2  its  legislature  in  1905  submitted  3  to  the  electors  the  question, 
"Shall  the  general  assembly  of  the  state  of  Delaware  provide  a  sys- 
tem of  advisory  initiative  and  advisory  referendum?" 

The  vote  was  taken  in  November,  1906,  and  of  the  votes  cast  on 
the  proposition,  a  large  majority  was  in  the  affirmative.4  A  year 
later  the  question  of  prohibiting  the  liquor  traffic  was  voted  upon 
throughout  the  state. 

Maine 

At  its  session  of  1907,  the  legislature  of  Maine  submitted  an  elaborate 
proposal 5  for  a  constitutional  amendment  incorporating  the  new  sys- 
tem. It  includes  the  main  features  of  the  Oregon  measure,  but  makes 
possible  a  gain  in  economy  and  speed  by  providing  6  that  a  measure 
proposed  by  twelve  thousand  electors  and  enacted  by  the  legislature 
without  change  need  not  be  further  submitted.  It  also  requires  the 
submission  of  competing  measures.  As  in  Missouri  this  proposal 
was  adopted  by  the  electors  at  the  general  election  in  1908. 

Oklahoma 

The  latest  commonwealth  to  join  the  movement  for  the  initiative 
and  referendum,  and  the  first  to  embody  it  in  an  original  constitution, 

1  Montana  Laws,  1907,  Chap.  62. 

2  The  one  conspicuous  instance  —  the  attempted  submission  of  a  prohibitory 
liquor  law  in  1847 — was  frustrated  by  the  decision  of  the  Supreme  Court  in  Rice  v. 
Foster,  4  Harr.  (Del.)  479. 

3  Delaware  Laws,  1904-1905,  Chap.  53. 

4  New  York  State  Library  Index  of  Legislation,  1906,  115  a.     In  the  legislature 
of  1907  such  a  measure  passed  the  House  but  failed  in  the  Senate  through  one  senator's 
objection,  which  prevented  the  unanimous  consent  necessary  to  consider  it. 

5  Maine  Acts  and  Resolves,  1907,  Chap.  121,  p.  1476.  e  Id.  1478. 


INITIATIVE   AND   REFERENDUM   AS   TO   ANY  MEASURE      365 

is  Oklahoma.  This  newest  of  states  enters  the  Union  with  a  funda- 
mental code  ratified  by  an  unusual  majority,  which  devotes  an  entire 
article1  to  the  new  system  along  the  lines  of  the  Oregon  plan,  but  appli- 
cable as  well  to  items  and  parts  of  acts  2  and  to  county  and  district 
legislation.3  The  article  appears  sufficiently  specific  to  be  self -exe- 
cuting,4 but  it  provides  for  further  legislation  "to  prevent  corruption 
in  making,  procuring,  and  submitting  initiative  and  referendum 
petitions."  5 

Other  States 

A  measure  similar  to  that  of  Oregon  has  been  approved  by  the 
North  Dakota  legislature,  but  requires  the  assent  of  a  second  legis- 
lature before  going  to  the  people.6 

The  Ohio  Legislature  of  1908  also  passed  an  enactment  embody- 
ing the  system  and  providing  for  its  extension  to  local  government.7 

Such,  then,  is  the  present  status  of  the  initiative  and  referendum 
in  America  as  revived  and  reestablished  upon  Swiss  models.  Without 
assuming  to  forecast  the  future  we  may  summarize  the  results  as  fol- 
lows :  — 

1.  Everywhere  the  system   is   merely  an   alternative   one.     No 
attempt  has  been  made  to  abolish  law-making  by  legislature;   only 
to  supplement  it  with  law-making  by  popular  vote,  and  that,  too,  not 
in  all  cases,  matters  requiring  speedy  action  still  being  left  to  the 
representative  body. 

2.  While  the  present  movement  started   in  the   trans-Missouri 
region,  and  has  had  its  greatest  development  there,  it  has  also  spread 
to  other  states,  including  the  only  one — Delaware — which  has  never 
employed  the  constitutional  referendum;  nor  is  it  found  exclusively  in 
states  dominated  by  either  of  the  great  political  parties.     The  move- 
ment, in  fact,  is  neither  sectional  nor  partisan. 

3.  The  system,  as  yet,  has  been  in  full  working  order  in  but  one 
state,  —  Oregon,  —  and  if  it  has  brought  evil  results  there,  they  have 
not  been  made  known  to  the  country  at  large.8    No  radical  or  other- 

1  Oklahoma  Const.,  1907,  Art.  V.       4  But  see  Ex  parte  Wagner,  95  Pac.  Rep.  435. 

2  Id.  sec.  4.  5  Id.  sec.  8. 

3  Id.  sec.  5.  8  North  Dakota  Laws,  1907,  p.  451. 

7  See  Equity,  X,   72.     Submission   of  a  referendum  amendment  was  publicly 
commended  by  both  United  States  senators  from  Ohio. 

8  See  articles  by  W.  S.  U'Ren,  Arena,  XXXII,  128,  and  R.  I.  Platt,  Yale  Law 
Journal,  XVIII,  40. 


366  THE  PEOPLE'S   LAW 

wise  objectionable  measures  have  yet  been  enacted  by  this  method. 
The  two  most  conspicuous  laws  —  those  providing  for  the  direct  pri- 
mary and  for  taxing  the  gross  earnings  of  corporations  —  have  long 
been  urged  by  conservative  reformers  elsewhere.  Nor  has  there  been 
any  such  lack  of  interest  on  the  part  of  the  electorate  as  would  indicate 
that  good  measures  are  likely  to  fail  or  bad  ones  to  be  adopted  through 
the  indifference  of  the  better  class.  At  the  last  general  election  in 
Oregon  the  vote  on  pending  measures  was  in  one  case  seven-eighths 
of  the  total  vote  for  officials.1  Even  in  a  state  where  it  has  received 
little  practical  use,  though  authorized,  its  value  in  abolishing  the  lobby 
has  been  attested  by  the  chief  executive.2 

Finally  the  educational  influence  of  the  system,  especially  when 
coupled  with  special  features  like  those  already  noticed  in  Oregon 
and  Montana,  should  not  be  ignored.  The  movement  on  the  whole 
is  one  of  the  most  significant  of  contemporary  political  tendencies 
in  America,  and  furnishes  a  subject  for  profitable  study  and  thought- 
ful consideration. 

1  See  ante,  p.  345,  n.  3 ;  Review  of  Reviews,  XXXIV,  143 ;  Political  Science  Quar- 
terly, XXII,  484,  494.    The  article  last  cited  quotes  a  visitor  in  an  Oregon  village  as  say- 
ing:   "There  can  be  no  question  of  the  fact  that  the  voters  were  much  interested, 
and  the  more  intelligent  ones  had  a  sense  of  responsibility  which  made  them  express 
themselves  with  a  good  deal  of  emphasis." 

2  See  Independent,  LIV,  1977. 


D 

POPULAR    PARTICIPATION   IN   LAW-MAKING    OUT- 
SIDE  OF   THE   UNITED  STATES 

CHAPTER   XXIX 
FRANCE 

IT  has  already  been  shown l  how  the  work  of  the  Massachusetts 
convention  of  1780,  resulting  in  the  first  popular  state  constitution, 
influenced  the  political  thought  of  contemporary  France.  The  effect 
of  this  is  apparent  in  the  first  great  instrument  put  forth  by  the  pro- 
moters of  the  French  Revolution  —  the  Declaration  of  the  Rights  of 
Man.  That  famous  document  recited :  — 

"Law  is  the  expression  of  the  general  will.  All  citizens  have  the  right  to 
participate  in  its  formation,  either  personally  or  through  representatives.2  .  .  . 
Sovereignty  resides  in  the  people ;  it  is  one  and  indivisible,  imprescriptible  and 
inalienable."  3 

"It  is  hard  to  say,"  observes  Borgeaud,4  .  .  .  "what  the  Bishop  of  Autun, 
who  proposed  it,  and  the  Assembly  meant  by  the  words,  'personal  participation 
in  the  framing  of  laws.'  The  provision  was  never  discussed.  Some  possibly 
regarded  it  as  only  a  declaration  of  the  eligibility  of  all  to  legislative  functions. 
But  others  certainly —  arid  they  were  in  the  majority —  regarded  the  'personal 
participation'  as  referring  to  the  final  adoption  of  the  constitution." 

A.    Thet  Constitutions 

The  next  instrument,  the  constitution  of  1791,  was  not,  however, 
submitted  to  the  people,  nor  was  provision  made  therein  for  such 
a  course  in  the  future.  In  the  assembly  which  framed  it,  Malouet 

1  Ante,  177.  2  Art.  6.  3  Art.  25. 

•»4  "Adoption  and  Amendment  of  Constitutions"  (Hazen's  Trans.,  New  York, 
1895),  199. 

367 


368  THE  PEOPLE'S   LAW 

argued  for  its  approval  by  "the  real  and  undeniable  majority  of  the 
nation,"  1  but  as  finally  adopted  it  provided  for  a  convention  to  con- 
sider amendments  proposed  by  the  three  preceding  legislatures.2 

When,  in  1792,  the  revolutionary  movement  passed  into  the  hands 
of  the  National  Convention,  it  was  soon  apparent  that  the  principle 
of  directly  consulting  the  people  had  gained.  One  of  the  convention's 
first  acts  was  to  declare,  without  a  dissenting  voice,  "that  there  can 
be  no  constitution  which  is  not  adopted  by  the  people."  3  As  it  pro- 
ceeded with  its  work  it  appointed  a  committee  to  formulate  a  plan 
for  a  constitution,  and  the  two  most  active  members  of  this  committee 
were  Condorcet,  student  and  admirer  of  American  institutions,  and 
Thomas  Paine.  The  plan  reported  by  this  committee  provided  for 
consulting  the  people  in  their  primary  assemblies  with  reference  to 
the  calling  of  a  convention  and  for  submitting  its  work  to  them.  It 
also  provided  for  the  initiative  by  which,  at  the  instance  of  fifty 
citizens,  a  primary  assembly  might  consider  and  adopt  a  demand 
for  revision,  which,  if  approved  by  the  assemblies  of  arondissements 
and  departments,  successively,  would  require  a  submission  to  the 
entire  electorate.4 

"The  whole  plan,"  says  Borgeaud,5  "was  the  result  of  a  systematic  union 
of  the  principles  of  New  England  and  those  of  the  eighteenth-century  French 
philosophy.  In  it  we  find  Puritan  democracy,  only  it  is  formulated  by  a  savant 
and  secularized  by  an  encyclopedist." 

The  Constitution  of  the  Year  I 

The  fall  of  the  Girondists  effected  a  change  in  the  exponents  of  con- 
stitutional reform,  but  not  in  its  tendencies.  The  new  committee, 
appointed  at  the  instance  of  the  Mountain,  reported  a  plan  which 
retained  the  essential  features  of  Condorcet's.  While  the  convention 
was  to  be  nothing  more  than  the  ordinary  legislative  body,  both  the 
initiative  and  the  appeal  to  the  people  were  provided  for  in  the  follow- 
ing terms :  — 

"If  in  a  majority  of  the  departments,  a  tenth  of  the  primary  assemblies  of 
each,  regularly  organized,  demand  a  revision  of  the  constitution  or  a  change  of  any 
of  its  articles,  the  legislative  body  must  summon  all  the  primary  assemblies  of  the 

1  Moniteur,  August  31,  1791.  2  Title  VII. 

3  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  205. 

4  Moniteur,  XV,  437  et  seq.  (Reprint).  5  206. 


FRANCE  369 

republic  to  pronounce  upon  the  question  of  the  convocation  of  a  national  con- 
vention." l 

Of  greater  interest  than  all,  however,  is  the  extent  to  which  this 
instrument  invites  the  participation  of  the  people  in  ordinary  legis- 
lation. Following  are  some  of  its  provisions : 2  — 

"Art.  7.   The  sovereign  people  is  the  totality  of  French  citizens.  .  .  . 

10.   It  deliberates  upon  the  laws. 

19.   Votes  upon  the  laws  are  given  by  yes  or  no.  .  .  . 

Of  the  Enactment  of  Law 

56.  Projects  of  law  are  preceded  by  a  report. 

57.  The  discussion  cannot  begin  and  the  law  cannot  be  provisionally  decreed 
until  fifteen  days  after  the  report. 

58.  The  project  is  printed  and  sent  to  all  the  communes  of  the  Republic 
under  this  title:    Proposed  law. 

59.  Forty  days  after  the  sending  of  the  proposed  law,  if  in  one -half  of  the 
departments  plus  one,  a  tenth  of  the  regularly  constituted  primary  assemblies 
of  .each  of  them  do  not  object,  the  project  is  accepted  and  becomes  law. 

60.  If  there  is  objection,  the   Legislative  Body  convokes  the  primary  as- 
semblies." 

We  have  seen  3  how,  more  than  fifteen  years  previously,  the  con- 
stitution makers  of  Georgia  adopted  the  initiative  principle,  but  this 
appears  to  be  the  earliest  instance  of  incorporating  the  referendum 
for  ordinary  laws  into  a  modern  written  constitution.  "The  first 
appearance,"  says  Bryce,4  "of  the  method  of  direct  legislation  by  the 
.people,  is,  so  far  as  I  know,  the  provision  of  the  French  constitution 5 
framed  by  the  National  Convention  in  1793."  There  was  no  express 
requirement  that  the  instrument  itself  should  be  submitted  to  the 
people,  but  this  was  doubtless  because  all  were  so  strongly  agreed  on 
that  course  that  no  requirement  was  necessary.  The  constitution  went 
to  the  people  on  August  9, 1793,  and  was  ratified  by  them,  and  although 
it  never  came  into  force,  it  exerted  a  profound  influence  upon  later 
French  history.6 

f  Art.  115. 

'*  The  text  here  followed  is  that  of  Anderson's  "Constitutions  and  Documents  of 
France,"  170.  3  Ante,  155. 

*4  "The  American  Commonwealth,"  I,  465. 

6  He  excepts,  of  course,  the  survivals  in  Switzerland,  "and  the  tiny  republics  of 
Andorra  and  San  Marino." 

6  See  Lecky,  "Democracy  and  Liberty,"  I,  14,  15. 

2B 


370  THE  PEOPLE'S   LAW 

The  Constitution  of  the  Year  III 

The  constitution  of  1795,  officially  known  as  the  "  Constitution  of 
the  Year  III,"  was  a  result  of  the  popular  uprising  for  the  restoration 
of  the  short-lived  instrument  of  1793.  In  April,  1795,  the  convention 
appointed  a  constitutional  commission  consisting  of  eleven  members  J 
which  made  much  of  "the  American  model  to  which  their  colleagues 
often  referred."  2  The  proposals  of  the  commission  were  presented 
in  June,  and  in  the  course  of  the  debate  Baudin,  one  of  the  commission- 
ers, declared  — 

"  that  the  Constitution  must  receive  its  final  ratification  from  the  great  mass  of 
the  French  people,  by  a  decree  of  the  whole  nation  passed  in  their  assemblies 
of  primary  electors." 3 

The  instrument  as  finally  adopted  omitted  the  initiative  and  the  pre- 
liminary consultations  of  the  people,  but  it  embodied  the  plan  of  sub- 
mission as  to  future  changes  in  these  words :  — 

"  The  constitutional  convention  shall  immediately  submit  its  plan  of  revision 
to  the  primary  assemblies.  It  shall  be  dissolved  as  soon  as  the  plan  has  been 
thus  submitted." 4 

The  convention  likewise  declared  that  the  new  instrument  "should 
be  laid  before  the  armies  also  for  acceptance,  —  a  formality  the  sole 
undisguised  purpose  of  which  was  to  intimidate  the  hostile  Bour- 
geoisie" 5  At  the  same  time  the  convention  undertook  to  maintain 
itself  in  power  by  directing  that  two-thirds  of  its  membership  should 
be  reflected.  This  last  provision  called  forth  violent  opposition  from 
the  Paris  sections,  which  was  met  by  coercive  measures  on  the  part  of 
the  convention. 

"  In  the  Lepelletier  Section  the  proceedings  were  inaugurated  by  a  solemn 
declaration  that  every  citizen  was  entitled  to  express  his  opinion  freely  on  the  Con- 
stitution, the  decrees,  and  every  measure  for  the  public  weal,  because  every  other 
authority  must  give  way  before  the  primary  assemblies  of  the  sovereign  people, 
and  that,  to  this  end,  all  citizens  were  placed  under  the  common  protection  of  their 
own  and  all  other  Sections.  The  Convention  considered  this  resolution  so  dan- 
gerous, that  some  members  demanded  that  it  should  sit  en  permanence;  however 
they  contented  themselves  for  the  present  with  issuing  a  sharp  decree,  which 
forbade  under  heavy  penalties  the  establishment  of  a  Civic  central  committee, 
such  as  the  Sections  desired.  They  decreed  at  the  same  time  the  removal  of  all 
officials  who  were  non-juring  priests,  officers  of  the  National  Guard,  or  relatives 

1  Von  Sybel,  "History  of  the  French  Revolution"  (London,  1869),  IV,  304. 
»  Id.  320.  3  Id.  407.  4  Title  XIII,  Art.  346. 

6  Von  Sybel,  "  History  of  the  French  Revolution,"  IV,  410. 


FRANCE  371 

of  an  Emigrt;  and  above  all  they  strengthened  themselves  by  addresses  of  devo- 
tion frpm  the  regiments,  which  on  a  hint  of  the  Committees  were  easily  ob- 
tained." 1 

The  results  of  the  submission  showed,  however,  that  the  French 
electorate  understood  its  rights  and  was  able  to  discriminate  between 
the  instrument  which  it  really  desired  and  the  measures  which  the 
convention  was  attempting  to  force  upon  it :  — 

"  One  Section  after  another  announced  with  ostentatious  malice  that  their 
primary  assembly  had  accepted  the  Constitution  but  rejected  the  decrees.  They 
did  not,  however,  succeed  at  this  very  first  step  in  carrying  the  provinces  with 
them,  the  return  on  the  contrary  showed  a  considerable  majority  for  the  electoral 
law  also.  The  mass  of  the  population,  owing  to  the  prevailing  apathy,  had  taken 
no  part  in  the  voting  at  all.  For  the  Constitution  there  were  900,000  votes  and 
40,000  against  it;  for  the  decrees  nearly  170,000  and  against  them  93,000.  The 
armies  had  unanimously  voted  addresses  of  approval.  Whereupon  on  the  23d 
of  September,  the  Convention  declared  the  Constitution  and  the  electoral  decrees 
to  be  law."  2 

The  figures  given  out  by  the  convention  itself  showed  a  much 
larger  majority  for  the  decrees.3  But  their  opponents  denied  the 
correctness  of  these  returns,  and  time  has  confirmed  their  charges. 
It  is  now  believed  that  the  same  voters  who  ratified  the  "Constitu- 
tion of  the  year  III  "  rejected  the  decrees.4  The  electors  of  revo- 
lutionary France  had  progressed  far  enough  to  be  able  to  express 
their  convictions,  even  if  these  could  not  be  registered. 


B.     The  Napoleonic  Plebiscites 

With  the  advent  of  Napoleon  as  the  dominant  power  in  France, 
the  direct  participation  of  the  people  in  the  making  and  changing 
of  the  fundamental  law  was  not,  pro  forma,  abolished.  But  it  was 
employed  under  forms  and  methods  which  rendered  it  of  little  value 
as  a  genuine  expression  of  public  opinion.5  In  the  first  place,  the 

1  Von  Sybel,  412-415.  2  Id.  416. 

3  These  were  205,498  in  favor  of  the  decrees  as  against  108,784  opposed. 

4  Borgeaud,  "Adoption  and  Amendment,"  216. 

6  "The  Napoleonic  Universal  Suffrage  which  has  destroyed  freedom  in  France 
kand  has  reduced  Savoy  and  Nizza  to  the  same  level  of  bondage,  is  simply  a  palpable 
cheat,  which,  had  its  results  been  less  grave,  would  have  been  the  mere  laughingstock 
of  Europe.  It  is  a  mere  device  to  entrap  a  whole  people  into  giving  an  assent  to  pro- 
posals which  would  not  be  assented  to  by  their  lawful  representatives.  Hitherto  it 
has  been  in  every  case  a  mere  sham.  There  has  been  no  free  choice,  no  fair  alternative 


3/2  THE   PEOPLE'S   LAW 

method  of  balloting  was  changed.  Instead  of  voting  in  primary  as- 
semblies as  before,  the  elector  was  now  required  to  sign  a  public 
register  at  the  cantonal  capital,  at  the  same  time  announcing  his 
vote.1 

The  suggestion  of  this  has  been  ascribed  to  the  English  poll-book 
system,2  though  it  also  strongly  recalls  the  method  of  approving  the 
British  covenants  of  the  seventeenth  century.  But  in  a  country  where 
a  freer  and  more  secret  method  had  actually  been  employed,  it  marked 
a  decided  retrogression,  and  it  was  evidently  understood  that  this 
was  a  device  of  absolutism  to  prevent  a  fair  expression  by  the  people. 
When  this  "  Constitution  of  the  year  VIII"  was  "submitted  to  the  ac- 
ceptance of  the  French  people,"  only  about  fifteen  hundred  votes  were 
cast  against  it,  while  three  million  were  recorded  in  its  favor.3  This 
disparity  could  hardly  have  resulted  had  the  voting  been  free  and 
untrammelled,  and  had  not  the  electors  realized  perfectly  well  that 
a  vote  in  opposition  would  be  known  and  considered  as  an  act  of  hos- 
tility toward  the  government. 

In  1802  the  Council  of  State,  which  included  the  chief  supporters 
of  the  government,  agreed  upon  the  following  "Act":4  — 

"The  Consuls  of  the  Republic,  considering  that  the  resolution  of  the  First 
Consul  is  a  striking  homage  paid  to  the  sovereignty  of  the  people;  that  the  people, 
consulted  on  its  dearest  interests  ought  to  know  no  other  limit  than  its  interests  them- 
selves, decree  as  follows,  &c.  The  French  people  shall  be  consulted  on  these 
two  questions, — 

1.  SHALL  NAPOLEON  BONAPARTE  BE  CONSUL  FOR  LIFE? 

2.  SHALL  HE  HAVE  THE  FACULTY  OF  APPOINTING  HIS  SUCCESSOR? 
"Registers  shall  be  opened  for  this  purpose  at  all  the  mairies,  at  the  offices  of 

the  clerks  of  all  the  tribunals,  at  the  houses  of  the  notaries,  and  those  of  all  pub- 
lic officers." 

between  two  or  more  proposals  or  between  two  or  more  candidates.  The  people  have 
only  been  asked  to  say  Yea  or  Nay  to  something  which  has  been  already  established 
by  military  force."  —  Freeman,  "History  of  Federal  Government,"  71. 

1  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  217. 

"It  was  decided  that  the  Constitution  (of  the  year  VIII)  should  be  submitted  to 
the  national  opinion,  by  means  of  registers  opened  at  the  mairies,  and  at  the  offices  of 
the  justices  of  the  peace,  notaries,  and  clerks  of  tribunals,  and  that,  till  its  acceptance, 
of  which  no  doubt  appeared  to  be  entertained,  the  First  Consul,  the  retiring  Consuls,  and 
the  two  Consuls  elect,  should  proceed  to  make  those  appointments  with  which  they 
were  charged,  so  that,  on  the  ist  of  Nivose,  the  great  powers  of  the  State  might  be  con- 
stituted, and  ready  to  put  in  practice  the  New  Constitution."  — Thiers,  "History  of 
the  Consulate  and  the  Empire  of  France,"  I,  61. 

2  Borgeaud,  217. 

8  Id.  4  Thiers,  II,  295. 


FRANCE  373 

The  second  question  was  afterward  eliminated  by  Napoleon 
himself,  and  only  the  first  was  submitted.  Thiers  thus  describes 
its  reception,  stating  the  case,  we  may  be  sure,  most  favorably  to 
the  government:1  — 

"To  announce  that  such  a  question  had  been  put  to  France  was  to  announce 
that  it  was  resolved  upon.  If  public  opinion,  which  had  become  passive,  did  not 
take  the  initiative  of  great  resolutions,  it  might  nevertheless  be  relied  upon  that 
it  would  cordially  sanction  whatever  might  be  proposed  to  it  in  favour  of  the 
First  Consul.  It  felt  from  [for]  him  confidence,  admiration,  gratitude,  all  the 
sentiments  which  a  susceptible  and  enthusiastic  people  is  capable  of  feeling  for 
a  great  man,  from  whom  it  has  received  so  many  benefits  at  once.  .  .  .  They 
went  most  cheerfully  to  the  mairies,  to  the  notaries,  to  the  offices  of  the  clerks  of 
the  tribunals,  to  inscribe  their  approving  votes  in  the  registers  opened  to  receive 
them." 

In  the  momentous  change  by  which  France  passed  from  republic 
to  empire,  the  people  were  not  consulted.  A  vote  of  the  tribunate, 
afterward  ratified  by  the  Senate,  became,  in  1804,  the  basis  of  a  Senatus 
Consultant,  by  which  the  First  Consul  was  asked  to  assume  the  title 
of  emperor  and  the  succession  was  made  hereditary  in  the  male  line 
of  his  family.2  But  upon  the  occasion  when  he  was  proclaimed 
Emperor,  and  after  it  had  been  formally  announced  that  "The 
Senate  proclaims  Napoleon  Emperor  of  the  French,"  Bonaparte 
replied : 3  — 

"I  accept  the  title,  which  you  believe  to  be  useful  to  the  glory  of  the  nation. 

I  submit  to  the  people  the  sanction  of  the  law  of  hereditary  succession.  I  hope 
that  France  will  never  repent  of  the  honours  with  which  she  shall  invest  my 
family. 

At  all  events,  my  spirit  will  no  longer  be  with  my  posterity  on  that  day  when 
it  shall  cease  to  merit  the  love  and  confidence  of  the  Grand  Nation." 

It  will  thus  be  seen  that  the  people  had  nothing  directly  to  do 
either  with  the  creation  of  the  empire  or  the  investiture  of  Napoleon 
with  the  title  of  emperor.  All  this  was  done  before  they  were  appealed 
to.  But  when  the  empire  had  become  an  established  fact,  there 
was  submitted  the  incidental  question  as  to  the  succession.  Of  this 
formality  Thiers  observes :  — 

"Although  with  sentiments  somewhat  different  from  those  which  filled  their 
breasts  in  1799  and  in  1802,  the  citizens  eagerly  flocked  to  all  the  places  at  which 

1  Theirs,  296,  297.     Borgeaud  says,  "Three  and  a  half  million  votes  were  cast 
in  favour  of  ratification."  —  "Adoption  and  Amendment,"  218. 

2  Thiers,  III,  201  et  seq.  3  Id.  220. 


374  THE   PEOPLE'S   LAW 

registers  were  opened  to  record  their  votes.  The  affirmative  suffrages  were 
counted  by  millions,1  and  scarcely  were  the  few  negative  suffrages,  placed  there 
in  proof  of  the  liberty  enjoyed,  perceptible  amidst  the  immense  multitude  of 
favourable  votes."  2 

But  with  the  machinery  of  the  empire  already  in  working  order, 
this  can  hardly  be  regarded  as  a  real  test  of  the  popular  will.  Under 
the  circumstances,  as  Borgeaud  well  remarks,  "a  vote  against  the 
hereditary  transfer  of  the  imperial  dignity  would  have  been  a  vote 
for  civil  war." 

The  last  plebiscite  of  the  First  Napoleon  was  the  submission  of 
the  " Acte  Additional"  or  supplementary  constitution,  which  the 
Emperor  caused  to  be  drawn  by  M.  Constant,  in  the  period  between 
his  two  abdications  and  just  before  his  final  overthrow.  In  its  pre- 
amble he  declared:3  — 

"The  constitutions  of  the  Empire  have  thus  been  wrought  out  by  a  series 
of  acts  which  have  received  the  sanction  of  popular  approval.  .  .  .  The  fol- 
lowing articles,  supplementing  the  constitutions  of  the  Empire,  shall  be  submitted 
to  all  the  citizens  of  France  for  their  free  and  solemn  approval." 

The  instrument  thus  brought  forth  was  noted  for  its  advanced 
provisions.  "Never  before,"  says  Thiers,4  "had  so  much  liberty 
been  accorded  to  France."  But  it  came  too  late  to  call  forth  a 
general  expression  of  popular  approval.  Whether  those  who  par- 
ticipated were  free  to  express  their  choice  is  disputed ; 5  but  that 
they  were  a  small  minority  of  the  electorate  appears  to  be  certain.6 

1  3>5OO>OO°  according  to  Borgeaud,  219. 

2  "History  of  the  Consulate  and  the  Empire,  III,  224. 

3  Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  220. 

4  "History  of  the  Consulate  and  the  Empire,"  XI,  388. 

5  "There  had  been  perfect  freedom  in  voting  for  the  Additional  Act,  and  at  the 
elections.     There  had  been  no  restraint  either  in  writing  or  speaking,  nor  were  the 
votes  of  those  who  gave  the  most  offensive  reasons  for  their  political  opinions  rejected." 
—  Id.  445. 

On  the  other  hand,  Borgeaud  says :  — 

"  It  still  appears  very  probable  that,  whoever  was  connected  with  the  administra- 
tion, either  closely  or  remotely,  was  compelled  to  sign  his  name,  or  permit  it  to  be  signed, 
in  the  registers,  which  were  open  from  the  end  of  April  till  the  month  of  June."  —  "  Adop- 
tion and  Amendment  of  Constitutions,"  222. 

6  "The  nation  took  no  part  in  the  voting  for  or  against  the  Additional  Act  at  the 
municipalities,  notariats,  or  justices  de  paix,  nor  in  the  choice  of  representatives  at  the 
electoral  colleges.     Disgusted  with  revolutions  and  counter-revolutions,   the  people 
knew  not  whom  or  what  to  approve,  and  in  their  indecision  remained  concealed  at 
home.  .  .  .     Formerly,  when  France  looked  on  General  Bonaparte  as  a  saviour,  three 
or  four  millions  hastened  to  record  their  votes ;  but  now  not  more  than  twelve  or  thir- 


FRANCE  375 

"The    truth    was,"    declares    Borgeaud,1    "that    France    had    not 
voted." 

Plebiscites  of  Napoleon  III 

There  seems  to  have  been  no  actual  instance  of  a  plebiscite  under 
either  the  restored  Bourbons  or  Louis  Philippe.2  Proposed  constitu- 
tions were  prepared  after  each  abdication  of  Bonaparte,  in  which 
a  consultation  of  the  people  was  a  part  of  the  plan.3  But  it  was  not 
until  the  advent  of  the  lesser  Napoleon  that  the  plebiscitum  was  again 
employed.  And  with  him  the  form  of  the  submission  was  such  as 
to  leave  less  freedom  of  choice  than  was  allowed  even  under  the  first 
Napoleon. 

Instead  of  submitting  a  proposal  in  the  interrogative  form,  so 
that  the  voter  might  feel  that  he  was  at  liberty  to  return  either  a 
negative  or  an  affirmative  answer,  the  wording  was  such  that  the 
elector  could  have  no  doubt  that  the  government  expected  and  de- 
sired him  to  vote  in  the  affirmative.  Thus,  in  1851,  a  proposal  was 
submitted  in  this  form :  — 

"The  French  people  desires  the  maintenance  of  the  authority  of  Louis  Napo- 
leon Bonaparte,  and  invests  him  with  the  powers  necessary  to  establish  a  constitu- 
tion, upon  the  basis  outlined  in  his  proclamation  of  December  2."  4 

This  coercive  declaration  received  the  formal  assent  of  nearly 
seven  and  one-half  millions  of  electors,  with  a  contrary  vote  of  les's 
than  a  tenth  of  that  number.  But  the  opposition  had  more  substan- 
tial discouragement  than  the  phraseology  of  the  proposal.  Most 
of  their  leaders  were  in  prison,  more  than  twenty  departments  were 
in  a  state  of  siege,  and  the  press  was  notoriously  fettered.5  The 
will  of  the  people  could  hardly  be  expressed  under  such  conditions. 

Louis  Napoleon's  constitution  of  1852  was  not  submitted  to 
the  people.  It  provided,  however,  that  he  "always  has  the  right 
(sic)  to  appeal"  to  them,6  and  also  that  "every  modification  of  the 
fundamental  provisions  of  the  constitution  .  .  .  shall  be  submitted 

teen  thousand  had  voted  on  the  Additional  Act."  —  Thiers,  "History  of  the  Consulate 
and  the  Empire,"  XI,  445,  446. 

1  "Adoption  and  Amendment  of  Constitutions,"  222. 

*  "  A  great  displacement  of  political  power  was  effected  by  the  French  Revolution 
of  1830."  —  Lecky,  "Democracy  and  Liberty,"  I,  15. 

3  Borgeaud,  "Adoption  and  Amendment,"  224.  4  Id.  239.     Cf.  Lecky,  I,  38. 

*  Hglie,  "Les  Constitutions  de  la  France,"  1167.         a  Art.  5. 


3/6  THE   PEOPLE'S  LAW 

to  a  popular  vote  based  on  universal  suffrage." 1  This  latter  clause 
was  applied  within  a  year.  The  ''modification"  submitted,  of 
course  in  the  affirmative  form,  was  as  follows :  — 

"The  French  people  desires  the  reestablishment  of  the  imperial  dignity 
in  the  person  of  Louis  Napoleon  Bonaparte  with  hereditary  succession  in  the  line 
of  his  direct  legitimate,  or  adopted  descendants.  And  it  bestows  upon  him  the 
right  to  regulate  the  order  of  succession  to  the  throne  in  the  Bonaparte  family, 
as  provided  for  in  the  senatus-consult  of  November  7,  1852."  2 

This  time  the  affirmative  vote  was  somewhat  larger  than  in  the 
preceding  year.3  The  empire  had  become  more  firmly  established 
and  the  electors  correspondingly  less  disposed  to  thwart  its  plans. 

Toward  the  close  of  the  second  empire  a  series  of  amendments 
was  adopted  by  Parliament  which  liberalized  considerably  the  consti- 
tution of  1852.  In  1870  the  popular  approval  of  these  measures 
was  invited  in  the  following  phraseology :  — 

"The  French  people  approves  the  liberal  constitutional  reforms,  made  since 
1860  by  the  Emperor  with  the  concurrence  of  the  great  political  bodies  of  the 
State,  and  ratines  the  senatus-consult  of  April  20,  1870."  4 

The  vote  on  this  proposition  seems  to  have  been  fuller  and  freer 
than  at  any  time  since  the  Revolution.  Election  officers  were  in- 
structed by  the  government  both  to  "urge  the  people  to  the  polls" 
and  to  assure  them  of  absolute  freedom  in  the  expression  of  their 
will.5 

The  issue  was  squarely  drawn  "between  the  autocratic  consti- 
tution of  1852  and  the  liberal  constitution  of  1870,"  6  and  nearly  nine 
million  electors  participated,  almost  five-sixths  of  them  voting  in 
favor  of  the  reformed  instrument.7 

But  this  was  the  last  French  plebiscitum.  The  Napoleonic  device 
of  consulting  the  people  in  form,  but  not  in  reality,  had  borne  fruit. 
The  whole  system  of  popular  ratification  was  identified  in  the  public 
mind  with  the  dynasty,  which  finally  collapsed  at  Sedan,  and  for  more 
than  an  entire  generation  France  has  not  consulted  her  people  directly 
upon  a  constitutional  question.  This,  however,  can  hardly  be  a  per- 
manent condition.  Democratic  sentiment  seems  to  be  stronger  in 

1  Art.  32. 

2  Borgeaud,  "Adoption  and  Amendment,"  242. 

3  7,800,000.     Id.  242. 

4  Id.  244.  «  Id. 

6  Journal  Official,  April  10,  1870.        7  7,350,142  to  1,538,825.    See  Borgeaud,  244. 


FRANCE  377 

France  to-day  than  at  any  time  since  the  Revolution.  The  basic 
ideas  of  that  great  movement  are  regaining  their  hold  upon  the  French 
people,1  after  a  submergence  of  nearly  a  century  under  the  wave  of 
absolutism.  As  the  nation  comes  to  be  more  in  touch  with  that 
fruitful  period  in  which  its  modern  national  life  takes  root,  it  will 
find  that  popular  ratification  was  not  a  Bonapartist  idea,  but  an 
essential  feature  of  the  principles  of  the  Revolution.  The  growth  of 
the  French  Socialist  party,  with  whom  the  referendum  is  a  funda- 
mental plank,  will  also  influence  the  future,  and  we  may  look  for 
France,  which  was  the  first  to  borrow  the  American  system  of  sub- 
mitting constitutions,  eventually  tp  revive  the  plebiscite. 

1  Witness  the  proposal  in  the  Chamber  to  submit  to  a  popular  vote  the  question 
of  separating  church  and  state.     Review  of  Reviews,  XXX,  412. 


CHAPTER  XXX 
ITALY 

WE  have  seen l  how  the  popular  assembly  reappeared  for  a  time 
in  the  mediaeval  Italian  communes.  The  Swiss  republic  also,  with 
its  ancient  folkmoots  preserved  from  antiquity  was,  doubtless,  not 
without  influence  upon  its  southern  neighbor ;  and  in  this  connection 
the  fact  that  the  modern  plebiscite  began,  as  we  shall  see,  in  the 
states  of  northern  Italy,  is  significant.  But  the  immediate  source 
of  that  institution,  or  perhaps  the  occasion  of  its  revival,  is  probably 
to  be  found  in  France.  French  influence  was  dominant  in  Italy 
during  the  period  when  the  plebiscite  was  most  common  in  France, 
and  it  was  then  that  modern  Italy  saw  the  first  appeal  to  the  people. 

In  1848,  just  after  Carlo  Alberto  had  granted  his  celebrated 
Statute  to  Piedmont  and  Sardinia,  the  project  of  union  with  the 
Piedmontese  kingdom  begun  to  be  agitated  in  the  other  north  Italian 
states.  In  Lombardy  the  provisional  government  submitted  the 
question  to  the  electors  at  the  end  of  May,  and  while  the  experiment 
was  not  free  from  those  coercive  measures  which  had  brought  it  into 
such  discredit  in  France,2  nevertheless,  as  King3  observes:  — 

"The  result  must  have  surprised  all  parties.  Five  hundred  and  sixty  thou- 
sand, or  84  per  cent  of  the  electorate,  gave  their  votes,  and  barely  seven  hundred 
were  recorded  for  postponing  the  question.  Making  every  allowance  for  the 
unworthy  arts  of  one  party  and  the  disorganization  of  the  other,  it  showed  an 
overwhelming  preponderance  in  favor  of  fusion." 

1  Ante,  Chap.  II;   cf.  Bryce,  "American  Commonwealth,"  I,  448,  on  the  survival 
in  San  Marino. 

2  "Royalist  agents  had  been  at  work,  and  the  idea  was  abroad,  that  if  the  vote 
went  against  Charles  Albert,  he  would  withdraw  from  the  war.     Gioberti  was  brought 
to  Milan  to  act  as  a  counterpoise  to  Mazzini,  and  his  theme  of  '  Charles  Albert  or  Aus- 
tria' was  sung  in  every  key.     The  republicans,  divided  and  irresolute,  many  of  their 
leaders  away  at  the  war,  ill-at-ease  in  opposing  a  movement  that  told  for  unity,  for  the 
most  part  abstained.     Villagers  voted  under  the  eyes  of  the  priest,  soldiers  at  their 
officers'  bidding ;   forgery,  pressure,  coercion,  were  freely  used."  —  King,  "  History  of 
Italian  Unity,"  I,  244.  s  Id. 

378 


ITALY  379 

The  question  was  also  submitted  in  the  adjoining  duchies  of 
Parma  and  Modena,1  and  in  the  following  month  in  three  of  the 
Venetian  provinces,2  the  vote  in  each  showing  large  majorities  in 
favor  of  union. 

The  immediate  results  of  these  plebiscites  of  1848  were  short- 
lived, and  the  union  which  they  decreed  fell  with  the  reverses  attend- 
ing the  Piedmontese  arms.  But  the  idea  of  consulting  the  people, 
like  the  patriotic  movement  of  which  it  was  a  part,  was  not  dead ;  it 
was  merely  awaiting  a  favorable  opportunity  for  another  manifesta- 
tion, and  this  came  with  the  impetus  to  Italian  unity  resulting  from 
the  truce  between  the  French  and  Austrian  emperors  at  Villafranca. 
In  1859  the  proposal  of  annexation  to  Piedmont  was  again  submitted 
in  Parma,  with  a  result  even  more  pronounced  in  its  favor  than  on 
the  previous  occasion.3  During  the  next  year,  in  the  states  of  central 
Italy,  the  electorate,  which  included  practically  all  adult  males,  was 
invited  to  choose  between  annexation  or  a  separate  kingdom,  and 
about  three-fourths  of  the  registered  voters  participated.  The  plan 
of  annexation  was  ratified  in  ^Emilia  by  a  practically  unanimous  vote,4 
and  in  Tuscany  by  an  overwhelming  majority.5  Later  plebiscites 
in  Marches  6  and  Umbria  7  brought  forth  a  vote  for  annexation  even 
more  pronounced  than  in  Tuscany. 

The  electors  of  Naples  8  and  Sicily 9  declared  for  annexation  in 
October,  1860.  The  alternative  proposal  of  a  separate  kingdom  was 
not  submitted,  and  the  formula,  which  recalled  the  phraseology  of 
the  Napoleonic  plebiscites,  was  — 

"The  people  desire  Italy  to  be  one  and  indivisible,  with  the  constitutional 
royalty  of  Victor  Emmanuel  and  his  legitimate  descendants."  10 

But  the  result  was  so  pronounced  as  to  show  that  annexation  was 
clearly  the  wish  of  a  majority. 

"A  total,"  says  King,11  "of  nearly  two  million  votes,  with  a  handful  of  twelve 

"  History  of  Italian  Unity,"  I,  244. 

Id.  246.     The  plebiscite  was  refused  in  the  city  of  Venice.     Id.  247. 

The  vote  was  "  56,000  for  annexation  and  less  than  500  against  it."  —  Id.  II, 
97,  note. 

Id.  II,  121.  6  133,000  to  1200.     Id.  175. 

386,000  to  15,000.     Id.  7  97,000  to  380.     Id. 

1,310,000  for  annexation  and  10,000  against.     In  the  city  of  Naples  only  31  out 
of  106,000  voted  against  annexation.     Id.  9  432,000  to  600.     Id. 

10  Borgeaud,  "  Adoption  and  Amendment  of  Constitutions,"  86. 
u  "History  of  Italian   Unity,"  I,  175.     Lord  John  Russell,  however,  though  a 


380  THE  PEOPLE'S   LAW 

thousand  against  them,  proved  in  the  face  of  all  cavillings  how  universal,  at 
all  events  for  the  moment,  was  the  desire  for  Unity  in  South  and  Central 
Italy." 

In  the  same  year  (1860),  plebiscites  were  taken  in  the  Piedmontese 
provinces  of  Nice  and  Savoy  on  the  question  of  annexation  to  France. 
Though  nominally  submitted  by  the  authorities  of  Piedmont,  these 
measures  were  really  forced  by  the  French  Emperor,  who  had  secured 
in  advance  a  treaty  of  cession.1  It  was  no  doubt  the  knowledge  that 
the  result  had  thus  been  prearranged  which  disarmed  the  opposition 
and  made  possible  an  apparent  unanimity  at  the  polls  in  favor  of 
annexation.  For  — 

"  it  was  notorious  that  the  figures  were  no  index  to  the  wishes  of  the  inhabitants. 
The  government  had,  without  any  semblance  of  decency,  exerted  all  its  influ- 
ence to  secure  the  vote  that  it  wished  for.  The  majority  of  the  Savoyards  in- 
deed were  probably  more  than  half  disposed  to  separation,  or  cared  little  which 
way  their  fate  went,  though  the  northern  portion  of  the  province  would  have  pre- 
ferred to  be  joined  to  Switzerland.  At  Nice  the  feeling  was  strong  against  separa- 
tion, and  the  people  made  pathetic  efforts  to  escape  the  destiny  imposed  on  them." 2 

The  "government  "  here  referred  to  as  employing  these  coercive 
measures  was  the  Piedmontese  government,  but  behind  it  was  Napo- 
leon III,  who  had  extorted  the  cession  by  threats  of  armed  force,  and 
in  order  to  complete  it,  had  compelled  the  little  Italian  kingdom  to 
make  this  plebiscite  as  farcical  as  that  which  had  given  formal  sanc- 
tion to  the  coup  d'etat. 

There  remained  only  the  papal  states  where  the  plebiscitum  had 
not  been  tried.  Its  employment  there  followed  the  entry  of  the  Italian 
troops  into  Rome  in  1870.  Lanza,  the  commander  of  the  king's 
forces,  and  temporarily  at  the  head  of  the  military  government  of 
the  city,  arranged  for  a  plebiscite  on  the  subject  of  union  with  the 
rest  of  Italy,  preserving  at  the  same  time  the  spiritual  authority  of 
the  Roman  pontiff.3  In  October  the  vote  was  taken,  and  although 
it  is  said  that  many  faithful  Catholics  absented  themselves  from  the 

friend  of  Italian  unity,  regarded  the  four  plebiscites  last  noticed  as  having  "little  validity. 
These  votes,"  he  declared,  "are  nothing  more  than  a  formality  following  upon  acts  of 
popular  insurrection,  or  successful  invasion,  or  upon  treaties,  and  do  not  in  themselves 
imply  any  independent  exercise  of  the  will  of  the  nation  in  whose  name  they  are  given." 
—  "Speeches  and  Despatches,"  quoted  by  Lecky,  "Democracy  and  Liberty,"  I,  494, 

495- 

1  King,  "History  of  Italian  Unity"  (New  York,  1899),  II,  120. 
3  Id.  122.  3  Id.  377. 


ITALY  381 

polls,  nevertheless  about  four-fifths  of  the  registered  voters  partici- 
pated,1 and  the  majority  in  favor  of  annexation  was  practically  as 
pronounced  as  had  been  given  by  the  other  states  ten  and  twenty 
years  before. 

Thus  was  the  union  of  modern  Italy  achieved  through  the  medium 
of  the  plebiscite.  It  must  be  remembered  also  that  in  voting  for 
annexation  these  Italian  states  were  likewise  adopting  new  constitu- 
tions. For  it  was  by  virtue  of  these  plebiscites  that  the  Statuto  of 
the  petty  Piedmontese  kingdom  has  become  the  constitution  of  the 
Italian  peninsula.  The  Statuto,  as  Borgeaud 2  observes  — 

"is  a  compact  sui  generis,  in  the  establishment  of  which  a  king  and  several  peoples 
have  acted  successively  as  sovereigns." 

In  recent  years  there  has  appeared  in  Italy  a  tendency  to  apply 
the  plebiscite  in  ordinary  legislation 3  and  it  is  interesting  to  note  that 
the  first  actual  experiments  have  been,  like  the  original  plebiscites,  in 
northern  Italy.  In  1903  laws  were  passed  providing  for  municipal 
control  of  public  utilities,  and  in  Milan  a  system  of  laborers'  tene- 
ments under  municipal  control  was  adopted  in  1906  by  popular  vote 
at  a  special  election  by  a  majority  of  eight  to  one.4  An  even  more 
striking  instance  in  the  same  region  is  thus  described  by  United  States 
Consul  J.  J.  Roche,  stationed  at  Genoa :  — 

"On  April  29,  [1906]  the  little  commune  of  Canneto  Pavese  near  Pavia  in 
Lombardy,  voted  almost  unanimously  by  referendum  on  the  question  of  putting 
their  business  of  wine  making  under  a  common  management.  Not  only  was 
this  the  first  experiment  in  that  function  but  it  was  also  an  experiment  not  at  all 
contemplated  by  the  framers  of  the  laws."  5 

The  Italian  constitution  has  never  yet  formally  been  changed. 
It  has  been  developed  by  construction  and  legislation,  but  no  formal 
amendments  have  been  adopted.8  When,  as,  in  the  course  of  their 

1  The  registered  vote  was  about  167,000;  those  actually  voting  were  133,000  in 
favor  and  1500  against.  King,  378. 

"Adoption  and  Amendment  of  Constitutions,"  84. 

See  Annals  American  Academy  of  Political  and  Social  Science,  VT,  227  et  seq. 

Consular  and  Trade  Reports  (May,  1906),  No.  308,  pp.  196,  197. 

Id.  (June,  1906),  No.  309,  p.  118. 

Borgeaud,  "Adoption  and  Amendment  of  Constitutions,"  84,  85. 
The  Statuto  does  not  provide  for  its  own  amendment,  but  the  opinion  seems  to 
prevail  that  this  is  permissible,  not  alone  through  Parliamentary  action,  but  likewise 
by  usage  and  interpretation.  —  Ruiz,  "The  Amendments  to  the  Italian  Constitution," 
Annals  American  Academy  of  Political  and  Social  Science,  VI,  227. 


382  THE   PEOPLE'S    LAW 

national  development,  must  happen,  the  Italians  are  called  upon  to 
revise  or  make  additions  to  their  Statute,  they  may  well  revert  to  the 
plan  so  successfully  followed  in  the  formative  period  of  their  history, 
and  invite  the  participation  of  the  people.  Nothing  has  ever  so 
effectually  brought  to  the  surface  the  best  in  Italian  civilization  as 
the  movement  which  manifested  itself  through  those  plebiscites  of  the 
nineteenth  century;  and  in  a  revival  of  these  Italy  may  find  not 
alone  the  key  to  her  future  constitutional  development,  but  likewise 
a  remedy  for  that  "unreality  of  her  political  life"1  which  is  the 
regret  of  her  sincerest  friends  and  well-wishers. 

1  King,  "History  of  Italian  Unity,"  II,  382. 


CHAPTER  XXXI 
OTHER  EUROPEAN,  COUNTRIES 

OUTSIDE  of  Switzerland,  the  most  frequent  use  of  the  plebiscite  in 
recent  years  has  been  in  Scandinavian  countries.  The  vote  of  the 
inhabitants  of  the  Swedish  Isle  of  St.  Barthelemy,  on  the  question  of 
annexation  to  France,  in  1878,  was  the  most  recent  one  taken  on  such 
a  question.1  The  events  by  which  the  kingdom  of  Norway  acquired 
its  new  political  status  were  also  marked  by  an  employment  of  the 
referendum  principle.  While  the  Storthing,  on  June  7,  1905,  de- 
clared a  dissolution  of  the  union  with  Sweden,  the  provisional  govern- 
ment, forthwith  established,  proposed  a  submission  of  the  question 
to  the  people.  This  was  accepted  by  the  Storthing,  and  August  13 
was  fixed  as  the  voting  day.  The  time  was  not  favorable  for  a  large 
vote ;  but  the  result,  as  predicted  by  an  interested  spectator,2  showed 
the  practical  unanimity  of  the  Norwegian  people  for  separation. 
Only  184  votes  against  it  were  cast,  and  there  were  368,200  in  its 
favor.3  When  it  came  to  determining  the  form  of  the  new  govern- 
ment, the  Storthing  showed  less  of  a  disposition  to  consult  the  people, 
and  a  motion  to  that  end  was  rejected,4  although,  in  the  opinion  of 
leading  Norwegians,5  popular  sentiment  was  in  favor  of  a  republic. 
The  proposal  to  invite  Prince  Charles  of  Denmark  to  become  king 
of  Norway  was,  however,  submitted  to  the  people  on  November  13, 
1905,  and  received  259,936  affirmative  votes  as  against  67,554  in  the 
negative.6  The  failure  to  submit  to  the  Norwegian  people  fairly 
and  explicitly  the  question  whether  they  desired  a  republic  was  a 
disappointment  to  lovers  of  republican  institutions,  and  has  been 

1  Lecky,  "Democracy  and  Liberty,"  I,  478,  479;    Card,  "Les  Annexions  et  les 
Plebiscites  dans  1'Histoire  Contemporaine." 

2  Calvin  Thomas,  "The  Plebiscite  of  the  Norseman,"  The  Nation,  LXXXI,  161. 

3  Political  Science  Quarterly,  XX,  772.  4  Id. 
6  Bjornsen  and  Lovland.     See  Literary  Digest,  XXXII,  98. 

8  Political  Science  Quarterly,  XXI,  377. 

383 


384  THE  PEOPLE'S   LAW 

ascribed  to  foreign  monarchical  influences.1  But  a  people  of  so  high 
a  grade  of  intelligence,  among  whom  illiteracy  is  almost  unknown, 
which  has  once  tasted  of  direct  participation  in  the  affairs  of  govern- 
ment, is  not  likely  to  be  satisfied  with  its  total  disuse. 

In  Denmark  a  plan  seems  likely  of  adoption  by  which  questions 
of  municipal  expenditures  are  to  be  submitted  to  the  taxpayers.2 

Iceland  is  another  Scandinavian  country  in  which  the  early  custom 
of  popular  legislation  seems  recently  to  have  been  revived.  The 
Alting,  which  was  anciently,  in  form  at  least,  a  folkmoot,  was  dis- 
solved at  the  beginning  of  the  nineteenth  century.3  It  was  reestab- 
lished in  1843  "as  a  sort  °f  advisory  council,"  4  and  given  full  legis- 
lative powers  in  1874.  About  thirty  years  later  the  island  was  granted 
greater  autonomy  by  abolishing  the  office  of  governor  general  and 
providing  a  resident  minister,5  and  this  measure  was  "  properly  voted 
on  and  ratified  not  only  by  the  Alting  .  .  .  but  by  the  people  itself."  6 
These  progressive  acts  of  restoration  have  borne  fruit  in  the  further 
employment  of  the  referendum,  and  the  Alting  submitted  to  the 
people  in  1908  the  question  of  prohibiting  the  importation  of  intoxi- 
cating liquors.7 

The  German  government  seems  to  have  ignored  its  treaty  obliga- 
tion to  give  the  Schleswig  Danes  a  plebiscite  on  the  question  of  re- 
union with  Denmark ; 8  but  in  the  German  free  city  of  Bremen, 
according  to  the  press  reports,  the  people  were  asked  to  vote,  in  1906, 
on  a  proposal  to  expend  a  considerable  sum  of  public  money  for 
harbor  improvements.  The  experience  of  Switzerland,  which  has 
already  been  briefly  9  noticed  in  connection  with  the  origin  of  modern 
popular  legislation,  could  not  be  treated  adequately  in  less  than  a 
volume,  and  no  review  of  it  will  be  attempted  here.  But  it  is  ap- 
parent that  since  the  beginning  of  the  French  Revolution  something 

1  See  Gohier,  "  La  Republique  Escamoniee  en  Norwege,"  reviewed  in  Literary 
Digest,  XXXII,  98.     The  author  says :  "  If  the  decision  had  been  preceded  by  a  loyal 
discussion  before  the  country  and  by  an  active  propaganda  in  favor  of  the  republican 
idea,  the  discussion  would  necessarily  have  concluded  with  the  choice  of  a  republic." 

2  Equity,  IX,  No.  4,  p.  u. 

3  Bryce,  "Studies  in  History  and  Jurisprudence,"  272-274. 

4  Id.  272,  note. 

6  "International  Encyclopaedia,"  IX,  774,  775;  Nation,  LXXXIII,  274,  275. 
8  Review  of  Reviews,  XXXVI,  629. 

7  Referendum  News,  I,  No.  10,  p.  2. 

8  Revue  de  Droit  International,  II,  325,  326;  Lecky,  "  Democracy  and  Liberty,"  I, 
478.  •  Ante,  Chap.  IV. 


OTHER  EUROPEAN  COUNTRIES  385 

in  the  nature  of  popular  law-making  has  been  tried  in  considerable 
and  widely  separated  portions  of  Europe.  It  is  interesting  to  observe 
that  it  has  been  applied  to  the  same  subjects  —  changing  the  form 
of  government,  regulating  the  liquor  traffic,  and  public  expenditures 
—  which  engaged  the  attention  of  the  American  electorate  in  its  irregu- 
lar but  steadily  increasing  use  of  the  referendum  in  ordinary  legisla- 
tion during  the  nineteenth  century. 


2C 


CHAPTER  XXXII 
LATIN  AMERICA 

SOME  approach  to  the  idea  of  popular  ratification  seems  to  have 
found  lodgment  in  a  few  of  the  Latin- American  states.  "  Direct  ap- 
peal to  the  voters  through  their  primary  assemblies,"  observes  Bor- 
geaud,1  "has  occurred  here  and  there  and  at  certain  times,  notably 
in  Nicaragua,  San  Salvador,  and  Honduras."  Speaking  of  the  early 
constitutional  history  of  another  Central  American  state,  a  local 
writer  says :  — 

"  The  Compact,  or  Constitutive  Law  of  Costa  Rica,  was  subscribed  to  Decem- 
ber i,  1821,  by  deputies  from  all  the  peoples,  and  sworn  to;  the  nth  day  of  that 
month  it  was  sent  forth  to  the  towns.  .  .  .  On  the  i8th  there  was  received  in 
Cartago  the  invitation  of  Iturbide  to  join  Mexico;  the  towns  decided  in  favor  of  it 
and  nearly  all  took  the  oath  of  independence."2 

In  1826  Bolivar  seems  to  have  observed  the  semblance  of  sub- 
mission to  a  popular  vote  in  Peru.  The  constitution  which  he  had 
just  previously  framed  for  Bolivia  provided  for  an  elector  to  be 
named  by  every  ten  citizens,3  and  when  the  Peruvian  Congress  invited 
"  El  Libertador  "  to  consult  the  provinces  as  to  the  form  of  a  consti- 
tution, he  seems  to  have  employed  this  system  of  electors  and  to  have 
sent  out  for  their  ratification  his  Bolivian  instrument  adapted  in 
phraseology  to  Peru.4  But  this  submission,  limited  though  it  was, 
appears  to  have  been  more  formal  than  real.  While  fifty-eight  of  the 
electoral  colleges  approved,  and  but  one  rejected,5  the  Codigo  Boliviano, 

1  "Adoption  and  Amendment  of  Constitutions,"  196.     Elsewhere  (194)  the  same 
author  speaks  of  certain  South  American  states  "applying  the  principle  of  an  appeal 
to  the  people  at  some  stage  of  the  constituent  work."     But  it  is  evident  that  by  this 
"appeal"  he  means  no  more  than  a  new  election  of  members  of  a  Congress  to  pass  on 
the  proposal. 

2  Calvo,  "The  Republic  of  Costa  Rica"  (Chicago,  1890),  249,  250. 

3  Gushing,  "  Bolivar  and  Bolivian  Constitution,"  North  American  Review,  XXX,  44. 

4  Id.  47. 

5  "  Such  perfect  unanimity  could  never  result  from  the  self -moving  deliberations 
of  a  free  people,  disposing  of  their  own  rights  according  to  their  own  will."  —  Id.  49. 

386 


LATIN   AMERICA  387 

the  result  was  not  attained  without  coercion  and  even  the  employ- 
ment of  troops,  at  least  for  effect.1  The  so-called  "  South  American 
Washington"  seems  to  have  inclined  to  the  ideals  of  Bonaparte, 
rather  than  to  those  of  the  northern  patriot,2  and  his  ostentatious 
"appeal  to  the  people"  resembled  the  then  recent  French  plebiscites 
far  more  than  the  methods  of  popular  constitution-making  which 
were  slowly  developing  in  North  America.  Hence,  this  instance  of 
1826  had  no  results  in  establishing  popular  ratification  in  Peru,  whose 
present  constitution,  like  those  of  most  other  Latin-American  states, 
provides  for  changes  by  the  legislature  alone.3 

The  truth  is,  these  so-called  republics,  while  geographically  near 
the  United  States,  are  politically  related  more  closely  to  Europe. 
Thus  the  Mexican  constitution  of  1824  was  modelled,  not,  as  is 

1  North  American  Review,  XXX,  47. 

2  "It  was  not  for  the  memorials  from  Arlington-House,  transmitted  to  him  with 
such  kindly  and  respectful  feelings,  that  he  preserved  his  veneration;    but  portraits 
and  busts  of  Napoleon  were  the  chosen  ornaments  in  his  palace  of  La  Magdalena." 

—  Id.  48. 

3  Argentina.  —  "The  Constitution  can  be  amended,  either  wholly  or  in  part.     The 
necessity  for  such  amendment  shall  be  declared  by  Congress,  with  the  concurrence  of 
at  least  two  thirds  of  the  members ;  but  the  amendment  itself  shall  not  be  made  except 
by  a  convention  called  for  that  purpose."  —  Argentine  Constitution  (1860),  Chap.  XXX ; 
New  York  Convention  Manual,  1894,  Vol.  3,  Foreign  Const.,  n. 

Brazil.  —  "The  constitution  may  be  amended  by  the  initiative  of  the  National 
Congress  or  of  the  State  assemblies." 

********* 

"This  proposition  shall  be  considered  approved  if  it  is  done  during  the  following 
year,  and  after  three  discussions,  by  a  majority  of  two-thirds  of  the  votes  in  the  two 
chambers  of  Congress."  —  Constitution  of  Brazil,  Art.  90;  New  York  Convention 
Manual,  136. 

Colombia.  —  "This  constitution  may  be  amended  by  a  legislative  act,  discussed 
first  and  adopted  after  the  several  readings  in  the  usual  manner  by  Congress,  submitted 
by  the  Government  to  the  next  following  Legislature  for  its  definite  action,  and  by  it 
newly  discussed  and  finally  adopted  by  two-thirds  of  the  members  of  both  houses.'' 

—  Constitution  of  the  Republic  of  Colombia,  Art.  209 ;  New  York  Convention  Manual, 
1 86. 

The  Colombian  constitution  of  1821  provided  for  amendments  to  be  proposed  by 
two-thirds  of  each  house,  to  be  considered  after  one-half  the  members  had  been  dis- 
placed, when  adoption  could  be  effected  by  two-thirds ;  certain  parts  were  unalterable, 
but  a  convention  was  provided  for  after  ten  years  to  revise  and  amend.  Niles  Weekly 
Register,  XXII,  230,  247;  North  American  Review,  XXIII,  314. 

Ecuador.  —  "  Whenever  the  Chambers,  by  absolute  majority,  may  deem  it  ad- 
visable to  reform  the  Constitution,  a  proposition  to  that  effect  shall  be  introduced  in 
Congress,  in  order  that  it  be  considered  when  the  renovation  spoken  of  in  Articles  57 
and  58  has  taken  place ;  and,  if  at  that  time  the  Chambers,  by  an  absolute  majority, 
acting  in  conformity  with  the  provisions  of  Section  69,  Title  VI,  approve  it,  the  amend- 


388  THE   PEOPLE'S   LAW 

popularly  supposed,  upon  the  American,  but  upon  the  Spanish  con- 
stitution of  Cadiz,  promulgated  in  I8I2.1 

Moreover,  the  conditions  in  those  countries  have  always  been  un- 
favorable to  a  genuine  appeal  to  the  people.  The  lack  of  schooling 
and  experience  in  self-government  and  popular  legislation  might  be 
overcome,  as  it  partly  has  been  in  France  and  Italy.  But  military 
dictatorships  and  chronic  revolutions  are  incompatible  with  the  en- 
joyment of  popular  constitution-making,  and  until  these  are  outgrown, 
Latin  America  can  hardly  hope  to  realize  that  system. 

"In  a  state  standing  on  the  eve  or  morrow  of  a  revolution,"  says  Borgeaud,2 
"appeal  to  the  people,  although  theoretically  justifiable  by  the  principles  on  which 
the  government  is  based,  is  rendered  impossible  by  circumstances." 

ment  shall  be  then  made  part  of  the  Constitution."  —  Title  XII,  Constitution  of  the 
Republic  of  Ecuador;  New  York  Convention  Manual,  217. 

Honduras.  —  "The  present  constitution  may  be  amended.  The  necessity  for 
amendment  may  be  declared  by  the  ordinary  congress,  but  the  amendment  can  be 
effected  only  by  a  national  constitutional  convention  for  the  purpose.  No  proposition 
of  amendment  shall  be  efficacious  unless  approved  by  a  two  thirds  majority  of  congress. 
The  case  provided  for  in  Art.  I  is  exempt  from  these  requirements."  —  Constitution 
of  Republic  of  Honduras,  Art.  XXVII;  New  York  Convention  Manual,  296. 

Mexico.  —  "  The  present  constitution  may  be  added  to  or  reformed.  In  order 
that  additions  or  alterations  may  become  part  of  the  constitution,  it  is  required  that  the 
congress  of  the  Union,  by  a  vote  of  two-thirds  of  the  members  present,  shall  agree  to 
the  alterations  or  additions,  and  that  these  shall  be  approved  by  the  majority  of  the 
legislatures  of  the  states.  The  congress  of  the  union  shall  count  the  votes  of  the  legis- 
latures and  make  the  declaration  that  the  reforms  or  additions  have  been  approved." 
—  Constitution  of  the  United  States  of  Mexico,  Title  VII ;  New  York  Convention  Man- 
ual, 356. 

Peru.  — "  Reform  of  one  or  more  constitutional  articles  may  be  sanctioned  in 
ordinary  Congress,  subject  to  the  same  forms  as  any  project  of  law  must  pass  through ; 
but  it  cannot  take  effect  unless  it  is  ratified  in  the  same  way  by  the  succeeding  ordinary 
legislature."  —  Peruvian  Constitution  (1860),  Title  XVIII,  Art.  131.  See  Markham, 
"History  of  Peru"  (Chicago,  1892),  515  et  seq. 

Venezuela.  —  "This  constitution  can  be  reformed  by  the  national  legislature  if 
the  legislatures  of  the  states  desire,  but  there  shall  never  be  any  reform  except  in  the 
parts  upon  which  the  majority  of  the  states  coincide ;  also  a  reform  can  be  made  upon 
one  or  more  points  when  two  thirds  of  the  members  of  the  National  Legislature,  de- 
liberating separately  and  by  the  proceedings  established  to  sanction  the  laws,  shall 
accord  it,  but  in  this  second  case,  the  amendment  voted  shall  be  submitted  to  the  legis- 
latures of  the  states,  and  it  will  stand  sanctioned  in  the  point  or  points  that  may  have 
been  ratified  by  them."  —  Constitution  of  Republic  of  Venezuela,  Art.  118;  New 
York  Convention  Manual,  439. 

1  Texas  Historical  Association  Quarterly,  January,  1900,  161  et  seq. 

*  "Adoption  and  Amendment  of  Constitutions,"  197. 


CHAPTER  XXXIII 
AUSTRALIA 

THE  early  Australian  "  constitutions "  were  mere  acts  of  the 
British  Parliament,  providing  for  systems  of  government  in  the  vari- 
ous colonies.  Commencing  with  1823,  when  the  constitutional  statute 
for  New  South  Wales  was  passed,  there  was  a  series  of  such  enact- 
ments,1 which,  in  origin,  more  resembled  the  colonial  charters  of 
early  America  than  constitutions  of  the  states.  There  was  no  action 
on  the  part  of  the  people  even  in  making  alterations,2  and  while  by 
1853  tne  colonial  legislatures  began  to  frame  instruments  for  them- 
selves,3 these  were  all  subject  to  approval  and  alteration  by  the  home 
government,  and  in  at  least  one  instance  the  proclamation  of  the 
statute,  as  enacted  by  the  British  Parliament,  called  forth  a  local 
legislative  protest.4 

A.     The  Federation  Movement 

It  was  not  until  the  last  decade  of  the  nineteenth  century  that  the 
plan  seems  to  have  been  presented  of  consulting  the  people  with  re- 
gard to  constitutional  changes,  and  it  then  became  a  part  of  the  move- 
ment for  Australian  federation.  That  idea  was  suggested  from  Eng- 
land as  early  as  i847,5  Dut  ft  found  little  favor  in  Australia  until 
a  considerably  later  period,  and  for  a  long  time  the  movement  went  no 
farther  than  conferences  and  discussions.  In  1891,  at  Sydney,  a  con- 
vention assembled  whose  delegates  were  empowered  by  their  respective 
colonies  "to  consider  and  report  upon  an  adequate  scheme  for  a 

1  Jenks,  "History  of  the  Australasian  Colonies"  (Cambridge,  1896),  54  et  seq.; 
Jenks,  "Government  of  Victoria"  (Cambridge,  1891),  69  et  seq. 

3  See  Rusden,  "History  of  Australia"  (London,  1883),  Vol.  Ill,  Chap.  XVI. 

8  See  Quick  and  Garran,  "Annotated  Constitution  of  the  Australian  Common- 
wealth" (London,  1901),  44,  55,  61,  64. 

4  Jenks,  "  Government  of  Victoria,"  Chap.  XVI. 

6  By  Earl  Grey,  Secretary  of  State  for  the  Colonies.  '  Quick  and  Garran,  "Anno- 
tated Constitution  of  the  Australian  Commonwealth,"  81  et  seq. 

389 


390  THE   PEOPLE'S   LAW 

Federal  Constitution."  l  The  instrument  framed  by  this  body  con- 
tained no  recognition  of  the  principle  of  popular  ratification.  It  pro- 
vided for  amendment  through  proposals  by  the  federal  Parliament,  to 
be  ratified  by  popularly  chosen  state  conventions  —  a  feature  appar- 
ently borrowed  from  America.  But  when  this  plan  was  reported  to  the 
convention,  it  furnished  an  opportunity  for  what  seems  to  have  been 
the  first  formal  suggestion  of  submission  to  the  electors  of  Australia. 
Mr.  Playford,  the  Premier  of  South  Australia,  objected  that  the  pro- 
posed plan  "was  a  clumsy  contrivance,  and  that  the  whole  difficulty 
arose  from  the  false  principle  of  taking  the  voice  of  the  people  in- 
directly through  conventions,  instead  of  directly  at  the  polls.  He 
advocated  the  Swiss  plan  of  a  referendum,  requiring  the  assent  of  a 
majority  of  the  people,  and  separate  majorities  in  more  than  half  the 
states."  2  An  amendment  embodying  these  views  was  advocated  by 
other  prominent  members  of  the  convention,  but  was  rejected.  An- 
other occasion  was  offered,  however,  in  determining  the  mode  of 
referring  the  instrument  itself  to  the  colonies.  Sir  George  Grey  of 
New  Zealand  moved  that  it  be  "  submitted  to  and  adopted  by  a 
majority  of  a  plebiscite  of  the  people  of  Australia."  3  But  he  after- 
ward accepted  an  amendment  substituting  a  separate  submission  for 
each  colony.  The  feeling  prevailed,  however,  that  the  convention 
should  not  assume  to  dictate  the  method  of  acceptance,  and  it  was 
finally  decided  merely  to  recommend  that  "provision  be  made  by  the 
parliaments  of  the  several  colonies  for  submitting  for  the  approval  of 
the  people  of  the  colonies  respectively  the  constitution  of  the  common- 
wealth of  Australia,  as  passed  by  this  convention."  4 

The  reception  accorded  the  new  instrument  by  the  colonies  was 
not  enthusiastic,  but  there  were  signs  that  the  sentiment  for  popular 
ratification  was  growing.  In  the  New  South  Wales  Assembly,  Sir 
Henry  Parkes  gave  notice  of  a  resolution,  which  however  was  not 
reached  before  adjournment,  approving  the  conventions'  work,  but 
declaring  "that  the  question  as  dealt  with  by  this  parliament  should 
be  submitted  to  the  people  in  their  electoral  capacity  for  final  ap- 
proval." 5  In  the  South  Australian  Assembly  a  motion  was  offered 
providing  that  amendments  to  the  new  constitution  should  be  sub- 
mitted directly  to  the  people,  instead  of  to  conventions.6 

1  Quick  and  Garran,  "Annotated  Constitution  of  the  Australasian  Colonies,"  123 
et  seq.  *  Id.  141.  3  Id.  142.  4  Id. 

6  Id.  145-  e  Id.  147- 


AUSTRALIA  391 

B.     Popular  Interest  Awakened 

The  Commonwealth  Bill  of  1891  was  never  adopted  by  any 
colony,  and  for  a  while  the  whole  movement  was  apparently  doomed 
to  failure.  But  in  the  early  nineties  the  cause  was  espoused  by  a 
society  known  as  the  Australian  Natives'  Association,  and  from  this 
time  on  it  became  a  movement  from  the  people,  instead  of  an  idea 
of  statesmen  and  doctrinaires.  At  a  conference  of  the  " Natives" 
and  kindred  associations  at  Corowa,  in  the'  summer  of  1893,  where 
much  enthusiasm  for  federation  was  manifested,  a  resolution  offered 
by  Dr.  John  Quick  *  was  unanimously  adopted,  providing  — 

"  That  in  the  opinion  of  this  conference,  the  legislature  of  each  Australasian 
colony  should  pass  an  act  providing  for  the  election  of  representatives  to  attend 
a  statutory  convention  or  congress,  to  consider  and  adopt  a  bill  to  establish  a 
federal  constitution  for  Australia ;  and  upon  the  adoption  of  such  bill  or  measure, 
it  be  submitted  by  some  process  of  referendum  to  the  verdict  of  each  colony." 2 

The  author  of  this  resolution  afterward  followed  it  up  with  the  draft 
of  a  proposed  bill  to 

"  provide  for  the  representation  of  Victoria  at  an  Australasian  Congress  legally 
created  to  frame  a  constitution  for  the  Federation  of  the  Australasian  Colonies ; 
and  further,  to  provide  for  the  reference  of  such  constitution,  when  framed,  to  the 
vote  of  the  people." 3 

The  distinctive  principle  of  the  new  movement  was  that  "the  people 
must  be  directly  interested,"  4  and  this  bill  was  designed  as  a  model 
for  enabling  acts  to  be  passed  in  all  the  colonies. 

In  1895  a  conference  of  premiers  to  consider  federation  was  held 
at  Hobart,  Tasmania,  at  which  all  of  the  Australasian  colonies  were 
represented.  Mr.  G.  H.  Reid  of  New  South  Wales  offered  a  set  of 
resolutions  providing  for  a  popularly  chosen  convention  to  frame  a 
constitution  which  should  "be  submitted  to  the  electors  for  accept- 
ance or  rejection  by  a  direct  vote,"  and  for  the  submission  to  each 
colonial  parliament  of  a  bill  to  carry  the  plan  into  effect.5  A  counter 
attempt  was  made  to  revive  the  Sydney  convention  scheme  of  1891, 

1  Joint  author  of  the  work  last  cited. 

2  Quick  and  Garran,  "Annotated  Constitution  of  the  Australian  Commonwealth," 
153-  3  Id. 

4  Galloway,  "Advanced  Australia"   (London,  1899),  152. 

5  Quick  and  Garran,  "  Annotated  Constitution  of  the  Australian  Commonwealth," 
158. 


392  THE  PEOPLE'S   LAW 

by  which  the  mode  of  submitting  the  constitution  should  be  left  to 
each  colony ;  but  in  the  end  the  Reid  resolutions  were  adopted  with 
but  two  dissenting  votes,  and  a  draft  bill  prepared  in  accordance 
therewith,  providing  also  that  the  convention  therein  authorized 
should  take  a  recess,  after  framing  the  constitution,  to  enable  the 
colonies  to  consider  it  and  propose  amendments.1  This  bill  was 
passed  by  the  parliaments  of  all  save  Queensland  and  New  Zealand, 
and  in  the  colonies  which  enacted  it  elections  were  held  and  dele- 
gates chosen.2 

The  convention  met  at  Adelaide  in  March,  1897,  prepared  an 
instrument  which  was  referred  to  the  colonial  parliaments,  and  ad- 
journed, as  required  by  the  enabling  acts,  to  await  their  suggestions. 
They  offered  numerous  amendments,  which  were  considered  when 
the  convention  reassembled  at  Sydney.  Another  adjournment  was 
taken,  this  time  to  Melbourne,  and  the  convention  finally  concluded 
its  labors  and  agreed  upon  a  constitution  about  one  year  from  the 
commencement  of  its  sessions.3 

The  submission  provided  for  by  the  Enabling  Acts  was  now 
carried  out.  The  acts  of  Western  Australia  required  that  New 
South  Wales  must  be  included  in  the  federation,  and  submission  in 
the  former  was  deferred  until  the  outcome  in  the  latter  colony  should 
be  known.4  In  all  the  other  colonies  except  Queensland  and  New 
Zealand,  where,  as  we  have  seen,  the  Enabling  Act  was  not  adopted, 
the  new  constitution  went  before  the  people  in  June,  1898,  and  out 
of  an  aggregate  of  something  more  than  220,000  votes,  it  received  a 
majority  of  over  two-thirds.5 

The  figures  disclosed  that  the  Australian  electorate  was  not  slow 
to  appreciate  its  newly  acquired  privileges.  In  Victoria  and  Tas- 
mania the  proportion  of  affirmative  to  negative  votes  was  nearly  five 
to  one;  in  South  Australia  more  than  two  to  one.  In  New  South 
Wales  alone  was  the  vote  at  all  close,  and  there  the  constitution, 
though  having  a  clear  majority  of  nearly  6000,  was  declared  lost 
because  the  Enabling  Act  required  for  that  colony  a  vote  of  80,000, 
and  those  received  fell  about  8500  short  of  that  number.6  Early  in 
1899  another  conference  of  the  premiers  was  held  at  Melbourne,  and 

1  Quick  and  Garran,  "Annotated  Constitution  of  the  Australian  Commonwealth," 

*59- 

2  Id.  160  et  seq.;    Galloway,  "Advanced  Australia,"  153,154. 

8  Quick  and  Garran,  165  et  seq.;  Galloway,  154,  163.  4  Galloway,  165. 

6  Id.;  Quick  and  Garran,  213.  8  Id.  164,  165;  Id. 


AUSTRALIA  393 

some  modifications  of  the  Enabling  Act  agreed  upon,  so  as  to  make 
it  more  acceptable  in  New  South  Wales.  The  amended  act  was 
then  passed  by  the  colonial  legislatures,1  and,  in  June  and  July,  1899, 
adopted  by  a  popular  vote  in  all  the  colonies  which  had  approved 
the  original  act,  and  also  at  last  in  New  South  Wales.2  In  Queens- 
land the  amended  act  was  ratified  in  September  of  the  same  year,3 
and  was  then  sent  to  the  British  Parliament,  where,  after  some  slight 
alterations,  it  received  the  royal  sanction  July  9,  1900.*  Later  in  the 
same  month  the  Enabling  Act,  which  had  now  become  known  as 
the  Commonwealth  Bill,  was  submitted  in  Western  Australia,  and 
adopted  by  a  vote  of  more  than  two  to  one.5 

As  New  Zealand  was  no  longer  considered  a  probable  member 
of  the  new  federation,  at  least  at  that  time,  this  completed  the  work 
of  submission,  and  the  commonwealth  of  Australia  entered  upon  its 
career,  hi  this  respect  in  advance  of  the  American  Federal  Union, 
with  a  popularly  ratified  constitution.6  For  the  future  the  practice 
was  insured  by  requiring  all  amendments  to  be  submitted  to  the 
people  of  the  several  states.7  And  not  only  was  the  referendum  em- 
ployed in  creating,  but  its  use  has  also  been  attempted  in  order  to 
dissolve  the  Australian  commonwealth.8 

In  accounting  for  the  accession  of  this  the  most  recent  community 
to  adopt  the  policy  of  popular  ratification,  we  must  probably  look 
again  to  the  influence  of  the  United  States.  In  the  early  constitu- 
tional debates  and  struggles  of  Australia,  her  statesmen  frequently 

Quick  and  Garran,  221. 

Galloway,  "Advanced  Australia,"  167.  The  majority  in  New  South  Wales 
nearly  25,000  in  a  total  vote  of  less  than  200,000. 

Quick  and  Garran,  225. 

Id.  249. 

Id.  250.     In  round  numbers,  the  vote  was  44,000  to  19,000. 

In  the  five  colonies  which  voted  the  second  time  prior  to  the  passage  of  the  bill 
through  the  imperial  parliament,  the  majority  was  more  than  236,000,  in  a  total  vote 
of  less  than  520,000.  See  Quick  and  Garran,  225. 

7  Chap.  VIII,  sec.  128,  Commonwealth  of  Australia,  Constitution  Act,  L.  R.  Stats. 
(1900),  Chap.  XII,  p.  24  (passed  July  9,  1900). 

Amendments  may  be  submitted  by  a  majority  of  both  houses  of  Parliament  or 
(in  case  a  proposal  twice  passed  by  one  house  is  rejected  by  the  other)  by  the  governor 
general.  They  must  be  approved  by  "A  majority  of  the  electors  voting"  and  in  a 
majority  of  the  states,  and  proposals  to  diminish  a  state's  representation  or  change  its 
boundaries  must  also  be  approved  by  "a  majority  of  the  electors  voting"  in  the  state 
affected. 

8  Witness  the  bill  introduced  into  the  West  Australian  Assembly  for  a  referendum 
on  the  question  of  secession.     See  Political  Science  Quarterly,  XXI,  744;  XXII,  375. 


394  THE   PEOPLE'S   LAW 

referred  to  American  precedents,1  and  while  Swiss  models  were  also 
before  them,  it  seems  likely  that  when  her  first  generation  of  native- 
born  voters  were  casting  about  for  means  to  promote  the  cause  of 
Australasian  union,  they  caught  from  America  the  suggestion  of 
directly  consulting  the  people.  The  land  that  has  given  us  the  re- 
formed ballot  law,  and  the  simpler  system  of  land  transfer,  seems  to 
have  sought  a  quid  pro  quo  by  borrowing  the  American  system  of 
popular  ratification. 

"Such,"  says  Symonds,2  "is  the  Lampadephoria,  or  torch-race  of  the  nations. 
.  .  .  The  people  of  the  North  pass  on  the  flame  to  America  .  .  .  arid  the  Aus- 
tralasian isles." 

1  Rusden,  "History  of  Australia,"  Vol.  Ill,  Chap.  XVI,  especially  pp.  80,  100,  112. 

8  "Renaissance  in  Italy,"  II,  546.  As  this  work  is  passing  through  the  press  the 
information  comes  that  the  proposed  new  South  African  Constitution  is  to  be  sub- 
mitted to  a  popular  vote  in  Natal  and  that  an  effort  to  the  same  end  was  made  in  the 
Transvaal.  Thus  another  stage  is  reached  in  the  "Lampadephoria  "  and  the  "  flame  " 
of  popular  participation  in  law-making  for  the  first  time  reaches  and  illuminates  the 
Dark  Continent. 


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TABLE   OF   CASES   CITED 


Baker  v.  Morton,  12  Wall.  (U.S.)  150  .  281 

Barto  v.  Himrod,  8  N.Y.  483  ....  298 
Blair  v.  Ridgely,  41  Mo.  177 ;  97  Am. 

Dec.  248 326 

Bott  v.  Secy,  of  State,  62  NJ.  L.  119; 

63  Id.  289 247,  248,  328 

Bound  v.  Wisconsin  Cent.  R.  Co.,  45 

Wis.579 327 

Brittle  v.  People,  2  Neb.  211 282 

Brower  v.  Haight,  18  Wis.  109  ....  356 

Brown  v.  Pierce,  7  Wall.  (U.S.)  205  .  .  281 

Burgess  v.  Pue,  2  Gill.  (Md.)  n  .  .  .  351 

Collier  v.  Frierson,  24  Ala.  100  .    .      214,  331 

Com.  v.  Judges,  8  Pa.  St.  391    ....  352 

Dayton  v.  City,  22  Minn.  400    ....  329 

Denny,  In  re,  156  Ind.  104 329 

Dixon  v.  State,  74  Miss.  271      ....  305 

Edwards  v.  Lesueur,  132  Mo.  410.     .    .  331 

Ex parte  Lynn,  19  Tex.  App.  293  .  .  .  354 
Exparte  Wagner,  95  Pac.  Rep.  (Okla.) 

435 362 


Frost  v.  Cherry,  122  Pa.  St.  417 


353 


Gibbs  v.  R.  Co.,  13  S.C.  242 332 

Gillespie  v .  Palmer,  20  Wis.  572    .      266,  327 
Green  v.  State  Board,  5  Idaho,  130    .    .    329 


Holley  v.  State,  14  Tex.  App.  505  . 
Hopkins  v.  Duluth,  81  Minn.  189  . 


354 
362 


Kadderlyz/.  Portland,  44  Ore.  1 18  .  .  .  362 
Kamper  v.  Hawkins,  i  Va.  Cas.  20,  70  . 

142,  146,  147,  324,  330,  335 

Larcom  v.  Olin,  160  Mass.  102  ....  350 
Luther  v.  Borden,  7  How.  (U.S.)  I  .  .  154 
Lynn,  Ex  parte,  19  Tex.  App.  293  .  .  354 

Manley  v.  State,  7  Md.  139  .  .  .  235,  330 
Miller  v.  Johnson,  92  Ky.  589  .... 

207,  333,  334,  335 

Mills  v.  Green,  67  Fed.  Rep.  818;  25 
U.S.  App.  383 ;  159  U.S.  651  .  .   308,  309 

Parker  v.  Com.,  6  Pa.  St.  527;  47  Am. 

Dec.  480 353 

Pfahler,  In  re,  150  Cal.  71,  88  Pac.  Rep. 

270 362 


PAGE 

Prohibitory  Amendment  Cases,  24  Kan. 
700 328 

Quinlan  v.  R.  Co.,  89  Tex.  356;  34 
S.W.Rep.744 333 

Rice  v.  Foster,  4  Harr.  (Del.)  492 .  353,  364 
Rice  v.  Palmer,  78  Ark.  432 327 

Senate  File,  31,  In  re,  25  Neb.  864     .    .    331 
Smith  v.  Janesville,  26  Wis.  291     .    .    .    356 
Sproule  v.  Fredericks,   69   Miss.   898; 
I  Thayer's  Cases  on  Constitutional 

Law,  250 211,  305,  335 

State  v.  Bacon,  14  S.  Dak.  394  ....  359 
State  v.  Barnes,  3  N.  Dak.  319  ....  329 

State  v.  Board,  21  Nev.  67 329 

State  v.  Boyd,  31  Neb.  746 282 

State  v.  Copeland,  3  R.I.  33 354 

State  v.  Favre,  51  La.  Ann.  434.  .  316,  318 
State  v.  Foraker,  46  Ohio  St.  694  ...  327 
State  v.  Hastings,  12  Wis.  47  ....  356 
State  v.  Hunt,  2  Hill  (S.C.)  i  ....  331 
State  v.  Laylin,  69  Ohio  St.  i  ....  344 
State  v.  Mayor,  29  La.  Ann.  863  ...  331 
State  v.  Mayor,  32  La.  Ann.  81 .  .  313,  331 
State  v.  Neal,  42  Mo.  119  .  .  .  271,  332,  335 

State  v.  O'Neill,  24  Wis.  149 356 

State  v.  Powell,  77  Miss.  543    327,  328, 329, 337 

State  v.  Swift,  69  Ind.  505 329 

State  v.  Winnett,  no  N.W.  Rep.  (Neb.) 

IIJ3 344 

Stebbins  v.  Judge,  108  Mich.  695  .  .  .  327 
Steele  v.  State,  19  Tex.  App.  415  .  .  .  354 

Tecumseh  National  Bank  v.  Saunders, 
51  Neb.  805 344 

Thomas  v.  Daniel,  2  McCord  (S.C.)* 
359 142 

Van  Steenwyck  z/.  Sackett,  17  Wis.  665  .    356 

Wagner,  Exparte,  95  Pac.  Rep.  (Okla.) 
435 327 

Wales  v.  Belcher,  3  Pick.  (Mass.)  508  .  350 
Wells  v.  Bain,  75  Pa.  St.  39  .  .  239,  271,  332 
Westinghausen  v.  People,  44  Mich.  270.  331 
Wiley  v.  Sinkler,  179  U.S.  58  ....  309 
Wilkinson  v.  Leland,  2  Pet.  (U.S.)  627.  191 
Williams  v.  Mississippi,  170  U.S.  213  .  305 
Wood's  Appeal,  75  Pa.  St.  74  .  .  .  . 

236,  239,  271,  332 


INDEX 


ACT  OF  SETTLEMENT. 

Prototype  of  constitution,  ix. 
ADAMS,  Brooks. 

On  Puritan  emigrant  companies,  46. 
ADAMS,  John. 

Characterizes     Massachusetts     constitu- 
tion, 178. 

Disciple  of  Harrington,  178. 

Part  in  framing  Massachusetts  constitu- 
tion, 171,  172. 

Sent  on  mission  to  Europe,  172. 
ADAMS,  John  Quincy. 

On  Mayflower  compact,  70. 
ADAMS,  Samuel. 

Part    in    framing    Massachusetts    con- 
stitution, 171  n. 
ADELAIDE,  South  Australia. 

Convention  at,  392. 
EMILIA. 

Plebiscite  in,   379. 
"AGREEMENT  OF  THE  PEOPLE." 

Authorship,  65. 

Character,  64,  65. 

Purpose,  65. 

Submission,   65. 
ALABAMA. 

Constitution  of  1901,  215. 

Enabling  act,  213,  295. 

First  state  constitution,  213,  214. 

Reconstruction  constitution,  215. 

Secession  convention,  215  n. 

Territory  organized,  213. 

Unique  system  of  amendments,  214. 
ALDRICH,  Robert. 

Temporary    chairman    South    Carolina 

convention,  309. 
ALEXANDRIA,  Va. 

Conventions  at,  223. 

Referendum  on  retrocession,   298. 
ALLAMANCE. 

Battle  of,  117. 
AMESBURY,  Mass. 

Recommends    changes    in    Articles    of 

Confederation,  168. 

ANABAPTISTS  (see  Baptists),  24,  26,  45  n. 
AXDOVER,  Mass. 

Votes  against  proposed  constitution,  164. 
ANNAPOLIS,  Md. 

Convention  at,  233. 


ANSON  COUNTY,  N.C. 

Regulators'  movement  in,  117. 
ARGENTINA. 

Constitutional  amendment  in,  387  n. 
ARKANSAS. 

Constitution  of  1874,  272. 

Direct  primary  in,  272. 

Enabling  act,  295. 

Non-popular  amendment  system,  272. 

Reconstruction  constitution,  272. 

Secession  convention,  272. 
ARNOLD,  S.  G. 

On  Rhode  Island  Charter,  191  n. 

On  Rhode  Island  Referendum,  82. 
ARTICLES  OF  CONFEDERATION. 

In  Massachusetts,  167,   168. 

In  New  Hampshire,  180,  181. 

New  England,  77,  78. 
ARYANS. 

Popular  assembly,  i. 
ASHFIELD,  Mass. 

Demands  referendum,  163. 
ASHLEY,  W.  J. 

On  township,  13  n. 
ASSEMBLY.     See  Folkmoot. 

Of  Charlemagne,  12,  15,  17. 

Of  Lombards,  17. 
ASSOCIATIONS. 

Among  British  Calvinists;  origin,  40. 

Bond  of,  55,  57. 

In  California,  286,  287. 

In  Iowa,  273,  274. 

In  Kentucky,  133. 

In  Nebraska,  281. 

In  Pennsylvania,  109,  no. 

In  South  Carolina,  112. 

In  Tennessee,  119  et  seq. 

In  Virginia,  130. 

Puritan,  55,  57. 
AUSTRALIA. 

Commonwealth  bill,  391  et  seq. 

Conventions  of,  389,  392. 

Early  constitutional  history  of,  389. 

Movement     for     federation     in,     389- 

393- 

Organization  of  commonwealth,  393. 
Popular  ratification  in,   390-394. 
Source   of    democratic    ideals    in,   393, 

394- 
AUSTRIA. 

Anabaptists  in,  24. 


413 


414 


INDEX 


B 


BALDWIN,  Simeon  E. 

On  light  popular  votes,  344. 

On  origin  of  constitutional  referendum, 

93- 
BALLOT. 

Early  use  of  written,  100. 
BALTIMORE,  Md. 

Convention  at,  230. 
BANCROFT,  George. 

On  Calvinism,  71  n. 

On  Federal  Constitution  in  New  Hamp- 
shire, 1 88. 

On  Mayflower  compact,  70. 

On  Rhode  Island,  80,  87. 

On  William  Penn,  107  n. 
BANCROFT,  H.  H. 

On  Vigilance  Committee,  287. 
BAPTISTS. 

Church  covenant  at  Kittery,  Me.,  196. 

First  American  Church  of,   Providence, 

R.I.,  79  n. 
BARRY,  John  S. 

On  first  Massachusetts  convention,  165, 

167. 
BASSETT,  John  S. 

On  "Regulators,"  117  n. 
BATES,  K.  L. 

On  Basque  folkmoot,  n,  12  n. 
BAVARIA. 

Survival  of  folkmoot  in,  12. 
BELLEVIEW,  Neb. 

Claim  association  at,  281. 
BENNETT,  Judge. 

On  powers  of  constitutional  convention, 

334- 
BIBLE. 

Adopted  as  law  in  Portsmouth,  R.I.,  79. 

Familiar  to  Tennessee  mountaineers,  124, 
125. 

Source  of  covenant  idea,  40,  45. 
BIGLER,  Senator. 

Bill  for  federal  referendum,  299. 
BILL  OF  RIGHTS. 

English,  ix. 

Instructions  for,  in  North  Carolina  con- 
stitution, 153. 

Proposed  for  Federal  Constitution,  193, 

228. 
BISHOP,  Cortlandt. 

On  referendum  in  Rhode  Island,  86. 
BLOUNT,  William. 

Calls  constitutional  convention,  207,  208. 
BOLIVAR,  Simon. 

Frames  Codigo  Boliviano,  386. 

Imitates  Napoleon,  387. 
BOLIVIA. 

Code  of,  386. 


BONAPARTE.     See  Napoleon. 
"BOND  OF  ASSOCIATION. "    See  Associations. 
"BOOK  OF  DISCIPLINE." 
Second,  39,  49. 

BOONESBOROUGH. 

Association  at,  133. 

Founded,    132. 
BORGEAUD,   Charles. 

On  "Agreement  of  the  People,"  64. 

On  Connecticut  system  of  amendments, 
195  n. 

On  ' '  Declaration  of  Rights  of  Man,"  369. 

On  French  Constitution  of  1791,  368. 

On  French  plebiscites,  373,  374. 

On  Guilds,  46. 

On  Italian  "Statute,"  381. 

On  Massachusetts  constitution,  176,  177. 

On  origin  of  democracy,  23. 

On  popular  ratification,  341. 

On  registers  of  Geneva  council,  27. 

On  source  of  covenant,  45. 

On  southern  "imitation,"  204. 

Works,  37. 
BOSTON,  Mass. 

Constitutional  convention  at,  201. 

Votes  against  proposed  constitution,  164, 

175- 
BOWDOIN,  James. 

President  Massachusetts  convention,  171, 

172. 
BRAZIL. 

Constitutional  amendment  in,  387  n. 
BREMEN. 

Referendum  in,  384. 
BREWER,  Justice. 

On  vote  required  for  amendments,  328  n. 
BREWSTER,  Elder. 

At  Ley  den,  69. 

At  New  Plymouth,  71. 
BRIDGEWATER,  Mass. 

Expression  on  Articles  of  Confederation, 

168. 
BRIGGS,  C.  A. 

On  covenant  doctrine,  41. 
BROUGHAM,  Lord. 

On  constitutionality,  x. 
BROWN,  P.  Hume. 

On  subscription  of   national  covenant, 

52. 
BROWN,  Robert. 

"Admonitions  to  the  Parliament,"  39,  40. 

Ancestry,   44. 

At  Norwich,  42,  44,  45. 

"Founder  of  Congregationalism,"  42,  44, 

45- 
BRYCE,  James. 

On  direct  legislation,  340,  369. 

On  Rhode  Island,  87. 
BUND.     See  Covenant. 


INDEX 


415 


BtTRNET,    JudgC. 

On  Miami  settlement,  252. 
BURR,  Aaron. 

President    second    New  York  constitu- 
tional convention,   162. 
BURRAGE,  Champlin. 

On  origin  of  covenant  idea,  23  n. 
BURTON,  John  H. 

On  renewal  of  Scotch  covenant,  50,  51  n. 

On  "Second  Book  of  Discipline,"  39  n. 


CALIFORNIA. 

Constitution  of  1850,  288. 

Constitution  of  1879,  288. 

First  constitutional  convention,  288. 

Miners'  associations  in,  286,  287. 

Referendum  in,  288,  345. 

San  Francisco  legislative  assembly,  287, 
288. 

Vigilance  Committee,  287. 
CALVIN,  John. 

Academy,  37. 

At  Geneva,  28-35. 

Characterizations  of,  33,  38. 

Education,  28,  29. 

"Institution,"  29,  30,  32,  39. 
CALVINISM,  71  n. 
CALVINISTS. 

Application    of    Doctrine    of    Common 
Assent,  136. 

Political  ideas  of,  extended,  162. 
CALVO. 

On  submission  in  Costa  Rica,  386. 
CAMBRIDGE,  Eng. 

Guild  ordinance  at,  20. 
CAMPBELL,  Alexander. 

Part  in  second  Virginia  constitution,  217. 

Starts  new  religious  movement,  216,  217. 
CAMPBELL,  Thomas. 

Helps  to  inaugurate  religious  movement, 

216. 

CAPITULARIES,  17  n. 
CARTWRIGHT,  Thomas. 

At  Geneva,  35-37. 

In  England,  39. 
CHARLEMAGNE. 

Assemblies  of,  12,  15,  17. 
CHARTER. 

Contrasted  with  constitution,  134-136. 

Of  Massachusetts  Bay,  73. 

Of  Rhode  Island,  first,  80,  81. 

Of  Rhode  Island,  second,  86. 
CHILLICOTHE,  O. 

Convention  at,  253. 
CHOATE,  Rufus. 

On  Puritan  state,  71  «. 
CHRISTIANS.     See  Disciples  of  Christ. 

Bound  by  oaths,  24. 


CLAIBORNE. 

On  Scotch-Irish  in  Mississippi,  133  ». 
CLAIM  ASSOCIATIONS.     See  Associations. 

In  Iowa,  273/274. 

In  Nebraska,  281. 
CLARENDON,  Constitutions  of,  ix. 
CLARENDON,  Earl  of  (Edward  Hyde). 

On  "Sacred  Vow  and  Covenant,"  58,  59. 

On  "Solemn  League  and  Covenant,"  61. 
CLARK,  George  Rogers. 

Mentioned,  250. 
CLARKE,  John. 

Agent  of  Rhode  Island  in  England,  85. 
CLARKSVILLE. 

Convention  and  compact  at,  251,  252. 
CLAY,  Clement  C. 

Member  first  Alabama  convention,  213. 
CLINTON,  De  Witt. 

Part  in  second  New  York  constitution, 

1821,  240,  241. 
COKE,  Sir  Edward. 

On  statute  nullifying  power,  x. 
COLLYER,  William. 

Commissioner    to    New    England    con- 
federation,  77. 
COLOMBIA. 

Constitutional  amendment  in,  387. 
"COMMON  ASSENT,"  Doctrine  of. 

Application  to  civil  affairs,  39,  40. 

Applied  by  Freemasons,  44  n. 

Applied  by  Mormons,  289. 

Applied  in  New  Haven  Colony,  47. 

Applied  in  New  Plymouth,   71. 

Applied  in  Scotland,   50. 

First  enunciation,  30. 

Source  of  popular  ratification,  66. 
COMMONS,  John  R. 

On  legislatures,  8. 
COMPACTS.     See    Associations;    Covenants. 

In  Connecticut,  89-98. 

In  early  Kentucky,  132,  133. 

In  Iowa,  273,  274. 

In  Massachusetts,  69,  70. 

In  Mississippi,  134. 

In  New  Hampshire,  98,  99. 

In  Ohio,  250,  252. 

In  Pennsylvania,  109,  no. 

In  Rhode  Island,  79. 

In  South  Carolina,  113. 

In  Tennessee,  119  et  seq. 
CONCORD,  Mass. 

Rejects  proposed  constitution,  164  et  seq. 
CONGREGATIONALISM. 

Beginnings  of,  42. 

Church  at  Leyden,  69-71. 
CONNECTICUT. 

First  constitutional  convention  in,  195. 

Popular  constitutions  in,  91-97,  195,  196. 

Popular  legislation  in,  89-98. 


416 


INDEX 


CONNECTICUT  —  Continued. 

Retains  colonial  charter,  194. 
Settlement  of,  88,  89. 
CONSEIL  GENERAL. 

At  Geneva,  27,  28,  31,  32. 
CONSTITUTIONAL  CONVENTION. 

American     contribution     to     political 

science,  ix,  66. 

Character  and  importance,  342,  343. 
Legislation  by,  207,  239,  271,  286,  309, 

310,  330,  337,  346. 

Popular  ratification  in  federal,  292-294. 
Product  of  popular  ratification,  342. 
Proposed  by  Vane,  66. 
Prototypes,   ix. 

Typical,  in  Massachusetts,  ix,  171-173. 
CONSTITUTIONS. 

Characterized  by  Mackintosh,  vii. 
Compared  with  provincial   charter,  135, 

136. 
Distinction  between,  and  statute  formerly 

not  understood,  142,  145. 
Federal,  in  New  Hampshire,  188,  189. 
Federal,  in  Rhode  Island,  191-194. 
First  American,  137,  138. 
First  complete,   142-148. 
First  state,  142. 

Influence  of  Massachusetts,  177. 
Oldest,  177. 

Origin  of  written,  ix,  25,  134,  136. 
Periods  in  development  of  popular  rati- 
fication, 338-340. 
Permanence  of  popularly  ratified,  340- 

342. 

Popularly  ratified,  first,  91. 
Popular  vote  on,  344-348. 
Proposed  submission  of  federal,  292-294. 
Reasons  for  non-submission,    138,    140, 

149,  161,  162. 
Second  state,  141. 
Validity  of  unsubmitted,  330-337. 
CONSTITUTIONS  OF  CLARENDON,  ix. 
COOLEY,  Thomas  M. 

On  powers  of  constitutional  convention, 

332,  33°- 
CORYDON,  Ind. 

Convention  at,  255. 
COSTA  RICA. 

Approach  to  popular  ratification  in,  386. 
COVENANTS. 

Among  Anabaptists,  24,  25. 

Among  English  Puritans,  55—57. 

At  Guilford,  Conn.,  98. 

At  Salem,  Mass.,  74. 

Character  and  purpose,  24  n,  54  n,  61. 

Compared  with  provincial  charter,  135, 
136- 

First  Scottish  Covenant,  49. 

Germ  of  written  constitution,  25,  134. 


In  England,  53-64. 

In  Scotland,  49-53,  60-65. 

National  Covenant,  49-53. 

Plantation  Covenant,  93,  94,  95. 

Renewal  of,  in  Pennsylvania,  109. 

"Sacred  Vow  and  Covenant,"  58,  59. 

Second  Covenant,  49-50. 

"Solemn    League    and    Covenant,"  19, 
60-64. 

Submission,  61-63. 

Town,  98. 

CRAFT  GUILDS.     See  Guilds. 
CRAIGHEAD,  Alexander. 

Leads  in  renewal  of  covenant,  109. 
CRITTENDEN,  Senator. 

Offers  resolution,  299. 
CROOKER,  J.  H. 

On  covenants,  24  nt  54  n. 
CUBA. 

Popular  ratification  not  required  in,  296, 

297. 
CURRY,  J.  L.  M. 

Expresses  "  representation  "  theory,  336. 
GUSHING,  C. 

On  Bolivar,  386  n,  387. 


DANVILLE,  Ky. 

Convention  at,  205. 
DAYTON,  O. 

Assembly  at,  253. 
DELAWARE. 

Advisory  initiative  and  referendum  in, 

312,  364. 

Attempts  to  change  constitutions  in,  311. 
Constitutional  conventions  in,   137,  248, 

249,  311,  312. 

First    middle   state   suggestion   of   sub- 
mission, 248. 
No  popular  ratification  in,  137,  155,  248, 

312. 

Survival  of  "Hundred"  in,  127. 
DELEGATE  SYSTEM. 

Championed  by  J.  L.  M.  Curry,  336. 

Championed  by  U.  M.  Rose,  7. 

Criticism  of,  8,  9. 

Eulogy  of,  6-8. 

In  Massachusetts  Bay  Colony,  74,  75. 

In  New  Plymouth,  72. 

In  Rhode  Island,  83-85. 

Judicial  expression  of  "representation  " 

theory,  147,  271. 
Origin,  4,  5,  7. 
"Representation"   theory   expressed   by 

Yancy,  215  n. 
"Representation"    theory    in    Missouri, 

271. 


INDEX 


417 


DEMOCRACY. 

Origin  of  modern,  23  n,  24. 

Stages  in  evolution  of,  9,  10. 
DEMOCRATS. 

Favor  second  Maryland  constitution,  232. 
DENMARK. 

Referendum  in,  384. 
DEPLOIGE,  Simon. 

Objections  to  referendum,  347. 
DESERET. 

Proposed   constitution  for,  289,  290. 
DE  TOCQUEVILLE.     See  Tocqueville. 
DETROIT,  Mich. 

Convention  at,   261. 
DEXTER,  H.  M. 

On  Congregational  origins,  42* 
DICEY,  A.  V. 

On  modern  parliaments,  6  n,  9. 

On  origin  of  constitutional  convention, 

66. 

DIRECT  LEGISLATION.     See   Referendum. 
DIRECT  PRIMARY. 

In  Arkansas,  272. 

In  Oregon,   362. 

In  Wisconsin,  266. 
DISCIPLES  OF  CHRIST. 

History  and  polity,  216,  217. 

DlSFRANCHISEMENT. 

Clauses  providing  for,  301  n. 

Constitutional  attempts  at,  301-325. 
DIVORCE. 

In  New  England,  ix. 

Referendum  on,  in  South  Dakota,  360. 
DOUGLAS,  Stephen  A. 

Doctrine    of    "  Squatter    Sovereignty," 
298. 

Senatorial  canvass,  260. 
DOVER,  Del. 

Conventions  at,  249,  311. 
DOVER,  N.H. 

Popular  legislation  in,  99. 
DUBUQUE,  Iowa. 

Miners'  assembly  at,  273. 


EATON,  Amasa  M. 

On  late  Louisiana  convention,  314. 
On  late  South  Carolina  convention,  309, 

310. 
On  powers  of  constitutional  convention, 

336,   337- 

On  Providence  compact,  79  n. 
On  Rhode  Island  referendum,  82  n. 
EATON,  Rev.  Samuel. 

Part  in  "Fundamental  Agreement,"  96, 

97- 
ECUADOR. 

Constitutional  amendment  in,  387  «. 

2E 


ELECTORAL  COLLEGE. 

In  Kentucky,  206. 

In  Maryland,  230,  231. 

Origin  of  federal,  230  «. 
ENABLING  ACTS. 

Of  Alabama,  213,  295. 

Of  Arizona,  297. 

Of  Arkansas,  295. 

Of  California,  295. 

Of  Florida,  295. 

Of  Illinois,  256,  295. 

Of  Indiana,  255,  295. 

Of  Iowa,  295. 

Of  Kansas,  296. 

Of  Louisiana,  268,  295. 

Of  Maine,  295. 

Of  Michigan,  261,  295. 

Of  Minnesota,  296. 

Of  Missouri,  270,  295. 

Of  New  Mexico,  297. 

Of.  Ohio,  252,  253,  294. 

Of  Oklahoma,  297. 

Of  Texas,  295. 

Of  Wisconsin,  295,  296. 

Popular  ratification  recognized  in  later, 
296,   297. 

Undemocratic   character  of  early,    205, 

253,  294  et  seq. 
ENGLAND.     See  Folkmoot. 

Covenants  in,  19,  53-64. 
EXETER,  N.H. 

"Combination"  of,  98. 
EXETER,  Eng. 

Guild  ordinances  at,  21. 


FEDERAL     CONSTITUTION.     See     Constitu- 
tions. 

Proposed    amendments    of,     189,     193, 

228,  299. 
FEDERAL  GOVERNMENT. 

Popular  ratification  in,  292-300. 
FERMANAGH  TOWNSHIP. 

Compact  of,  no. 
FISHER,  S.  G. 

On  Scotch-Irish  migration,  108  n. 

On  William  Penn,  107  n. 
FISKE,  John. 

On  delegate  system.  7. 

On  Mecklenburg  "Resolves "and  "Dec- 
laration," 117,  118  n. 
FLORIDA. 

Early  provision  for  constitutional  sub- 
mission, 226,  227. 

Enabling  act,  295. 

Later  constitutions,  227. 
FOLKMOOT. 

In  Bavaria,  12. 


4i8 


INDEX 


FOLKMOOT  —  Continued. 

In  England,  13,   15,  16,  18,  19. 

Influence  on  Teutonic  legal  conceptions, 
14-19. 

In  Prankish  Empire,  12,  15,  17. 

In  Friesland,  12. 

In  Hanover,  12. 

In  Holland,  5,  12,  13. 

In  Homeric  age,  3. 

In  Iceland,  13. 

In  Italy,  n,  378. 

In  Netherlands,  5,  12,  13. 

In  Rome,  4,  5. 

In  Russia,  14. 

In  Saxony,   12. 

In  Scandinavian  countries,  13. 

In  Spain,  n,  12. 

In  Sparta,  5. 

In  Switzerland,  26. 

In  Westphalia,  12. 

Teutonic,  i,  5,  12,  13. 
FORD,  Paul  Leicester. 

On  first  Pennsylvania  constitution,  149. 
FORD,  Worthington  C. 

On  first  Virginia  convention,  143. 
FOSTER,  Murphy  J. 

Message  to  Louisiana  constitutional  con- 
vention, 314,  315. 
FOSTER,  Roger. 

On  French  constitutions,  341. 
FRANCE. 

Constitutional  influence  of  Massachusetts 
on,  177,  367. 

Constitution  of  1791,  367,  368. 

Constitution  of  the  year  I,  368,  369. 

Constitution  of  the  year  III,  370,  371. 

Consultation  of  people  in,  368-377. 

Declaration  of  Rights  of  Man,  367. 

First  appearance  of  referendum  in  con- 
stitution, 369. 

Napoleonic  plebiscites  in,  371-376. 

Prospects  of  popular  ratification  in,  377. 

Socialists  in,  377. 

Transition  from  republic  to  empire,  373, 

374- 
FRANKFORT,  Ky. 

Conventions  at,  206,  207. 
FRANKISH  EMPIRE. 

Survival  of  folkmoot  in,  12,  15,  17. 
FRANKLAND. 

Constitution  of,  126-129. 

Referendum  in,  127. 
FRANKLIN.     See  Frankland. 
FREEMAN,  E.  A. 

On  decline  of  folkmoot,  5. 

On  Napoleonic  plebiscites,  371,  372  n. 
FREEMASONRY. 

In  Norwich,  44  n. 

Requirement  of  "common  assent,"  44  n. 


FRIESLAND. 

Survival  of  folkmoot  in,  12. 
FROUDE,  J.  A. 

On  Scotch-Irish  emigration,  105  n,  106  n. 

On  signing  of ' '  bondof  association,"  55  n. 
FUEROS. 

Of  Spain,  n,  12. 
FUNDAMENTAL  AGREEMENT. 

Of  New  Haven,  Conn.,  94,  97. 
"FUNDAMENTAL  CONSTITUTIONS." 

Subscription  required,  in,  112. 
"FUNDAMENTAL  ORDERS,"  89-93. 


GAINSBOROUGH,   Eng. 

Church  covenant  at,  54. 
GENEVA. 

Calvin  at,  28-35. 

Cart wright  at,  35. 

Centre  of  Protestant  world,  34. 

Cosmopolitanism  of  inhabitants,  41. 

Councils,  27,  28,  31,  32,  34,  36,  37. 

Knox  at,  34. 

Melville  at,  35. 

Monuments,  33. 

"Ordinannces,"  31,  32,  34. 

Trio  of  publicists,  38. 
GEORGE,  James  Z. 

Member  Mississippi  constitutional  con- 
vention,  302. 
GEORGIA. 

Character  of  colonists,  224. 

Constitutional  commission,  224. 

Constitution  of  1839,  225. 

First  constitution,  155. 

Popular  ratification  generally  followed, 
225. 

Provision  for  initiative,  155. 

Rejected  amendments,  225. 

Secession  constitution,  225. 

Second  constitution,  224. 
GERMANS.     See  Folkmoot. 

Copies    of    second     Pennsylvania     con- 
stitution for,  237. 

Dominant  in  colonial  Pennsylvania,  in. 

Part  favor  Great  Britain,  148. 
GERMANY. 

Referendum  in,  384. 

Survival  of  folkmoot,   12. 
GILMORE,  J.  R.  (Edmund  Kirke). 

On  Watauga   settlement  and   compact, 

120  n,  123  n. 
GODKIN,  E.  L. 

On  constitutional  conventions,  342,  343. 

On  representative  system,  8,  9. 
GOFF,  Judge  Nathan. 

Enjoins  election  of  delegates,  308. 

On  South  Carolina  registration  system, 
308  n. 


INDEX 


419 


GRAHAM,  George  W. 

On  Mecklenburg  "Declaration,"   118  n. 
GRAY,  W.  H. 

On  early  government  of  Oregon,  290. 
GREEN,  J.  R. 

On  primitive  folkmoots,  12  n. 
GREY,  Sir  George. 

Represents  New  Zealand  in  Australian 

federation,  390. 
GROSS,  Charles. 

On  "Merchant  Adventurers,"  46. 
GUERNICA  OAK,  n. 
GUILDS. 

Character,  20. 

Connection  between  Calvinism  and,  41. 

Influence  of,  41,  43,  45.  47- 

Number  and  quantity  of,  in  Norfolk,  43- 
44. 

Ordinances,   20-22. 

Origin,  20. 
GUILFORD,  Conn. 

Covenant  at,  98. 

H 

HANCOCK,  John. 

Part    in    framing    Massachusetts    con- 
stitution, 171  n. 
HANNA,  C.  A. 

On  "Solemn  League  and  Covenant,"  in 

Ireland,  62. 
HANOVER. 

Survival  of  folkmoot  in,  12. 
HARRINGTON,   James.     See  Oceana. 
HARRIS,  W.  P. 

Chairman    committee    Mississippi    con- 
vention, 302,  303. 
HARRISBURG,  Pa. 

Convention  at,  239. 
HARRY,  James  W. 

On  Maryland  referendum,  231  n. 
HARTFORD,  Conn. 

' '  Birthplace  of  American  democracy,"  89. 

Fundamental  orders  adopted  at,  89. 
HENDERSON,  Alexander. 

Draftsman  of  "National  Covenant,"  50. 
HENDERSON,   Richard. 

Early  life,  122  n,  131. 

Part  in  Transylvania  colony,  131-133. 

HlBBERT,   F.  A. 

On  influence  of  guilds,  22. 
HINSDALE,  B.  A. 

On  Ohio  "Enabling  Act,"  294. 
HOBART,  Tasmania. 

Convention  at,  391. 
HODGKIN,  Thomas. 

On  Capitularies,  17. 
HOLLAND. 

Survival  of  folkmoot  in,  12. 


HONDURAS. 

Approach  to  popular  ratification  in,  386. 

Constitutional  amendment  in,  388  n. 
HOOKER,  Thomas* 

Fundamental  orders  ascribed  to,  91. 

Leads  colonists  to  Connecticut,   89. 

On  choice  of  magistrates,  40. 
HOPE,  Sir  Thomas. 

Draftsman  of  "National  Covenant,"  50. 
HOUSTON,  Rev.  Samuel. 

Part  in  Frankland  constitution,  127,  128. 
HOWARD,  George  E. 

Introduction,  vii-xi. 

On  town  meeting,  100-103. 
HUNDRED. 

Survival  of,  in  Delaware,  127. 
HUNTSVILLE,  Ala. 

Convention  at,  213. 
HUSBANDS,  Herman. 

Criticism  of  law  and  lawyers,  114,  115. 

"Relation,"  114,  115,  120,  124. 


ICELAND. 

Modern  reforms  in,  384. 

Referendum  in,  384. 

Survival  of  folkmoot  in,  13. 
IDAHO. 

Constitution,  283. 
ILLINOIS. 

Advisory  initiative  and  referendum  in, 
261,  359. 

Constitution  of  1818,  257,  258. 

Constitutional  referendum  in,  259-261. 

Enabling  act,  256. 

First  constitutional  convention,  256,  257. 

Minority  representation  in,  260. 

Popular  ratification  in,  257-261. 

Popular  ratification,  source,  258. 
INDIANA. 

Enabling  act,  255. 

First  constitution,  255,  256. 

Popular  ratification  in,  256. 
INITIATIVE.     See  Referendum. 

Authorized  in  first  Georgia  constitution, 

155- 

Proposed  in  Pennsylvania,  238. 
"INSTITUTION." 

Calvin's,  29,  30,  32,  39. 
"INSTRUMENT  OF  GOVERNMENT,"  x,  65. 
IOWA. 

Claim  associations,  274. 
Compacts  and  associations  in,  273-275. 
Constitution  of  1857,  277. 
Early    attempts    at    organized    govern- 
ment, 273. 

Early  movement  for  constitution,  275- 
277. 


420 


INDEX 


IOWA  —  Continued. 

Enabling  act,  295. 

First  state  constitution,  277. 

Miners'  Code,  273. 

Popular  ratification  in,  273-277. 
IOWA  CITY. 

Conventions  at,  276,  277. 
IRELAND. 

Solemn   League   and  Covenant   in,   62, 

63- 
IRETON,  Henry. 

Reputed  author  of  "Agreement  of  the 

People,"  65. 
ITALY. 

Effect  of  plebiscites  in,  382. 

Origin  of  plebiscites,  378. 

Plebiscites  in,  378-381. 

Referendum  in,  378-381. 

"Statute,"  378,  381. 

Survival  of  folkmoot  in,  n,  378. 


JACKSON,  Andrew. 

Member   first   Tennessee   constitutional 
convention,  208. 

Special  message  on  first  Michigan  con- 
stitution, 262. 
JACKSON,  Miss. 

Convention  at,  302. 
JAMESON,  John  A. 

Work  praised,  viii. 
JAY,  John. 

Part  in  first  New  York  constitution,  162. 
JEFFERSON,  Thomas. 

Influence  on  second  Virginia  convention, 
148. 

On  first  Virginia  convention,  145. 

On  force  of  enacted  constitution,  146. 

Praises  first  Tennessee  constitution,  208. 

Proposes  popular  ratification,  145,   146. 
JOHNSON  COUNTY,  Iowa. 

Claim  association  of,  274. 
JOHNSTON,  Alexander. 

On    "birthplace   of    American   democ- 
racy," 89,  90. 
JOHNSTON,  Archibald. 

Draftsman  of  "National  Covenant,"  50. 
JONESBORO,  Tenn. 

Convention  at,  126. 
JUDICIAL  DECISIONS. 

Relative   to    unsubmitted   constitutions, 
330,  337- 

K 

KANE,  Elias  K. 

Prominent   in   the   first   Illinois   consti- 
tutional convention,  257,  258. 


KANSAS. 

Admission  of,  280. 

Constitution  of  1859,  280. 

Enabling  act,  296. 

First  constitutional  convention,  277. 

Free-soil  constitution,  278. 

Lecompton  constitution,  278,  279. 

Proposed  constitution  of  1858,  279,  280. 

Slavery  struggle  in,  277-280. 
KANSAS-NEBRASKA  BILL,  298,  299. 
KASKASKIA,  111. 

Convention  at,  257,  258. 
KEMBLE,  J.  M. 

On  Anglo-Saxon  legislation,  15,  18. 

On  origin  of  delegate  system,  4,  5,  6. 
KENT,  Eng. 

Survival  of  folkmoot  in,  13,  18. 
KENT,  James. 

Part  in  New  York  constitution  of  1821, 

241,  242,  244. 

KENTUCKY.     See  Boonesborough;  Transyl- 
vania Colony. 

Constitution  of  1799,  2°6- 

Constitution  of  1850,  207. 

Constitution  of  1891,  207. 

Electoral  college  abolished,  206. 

First  state   constitution,    205. 

Provides    first    constitutional    plebiscite 

outside  of  New  England,  205,  206. 
KING,  Bolton. 

On  Italian  plebiscites,  378-382. 
KING,  William  R. 

Member  first  Alabama  convention,  213. 
KINGSTON,  Alfred. 

On  associated  counties,  57. 
KITTERY,  Me.     See  Baptists. 
KNOX,  John. 

At  Geneva,  34. 

Succeeded  by  Melville,  35. 
KNOXVTLLE,  Tenn. 

Convention  at,  208. 
KOVALEVSKY,  Maxime. 

On  Russian  folkmoot,  14. 
KRUTTSCHNITT,  Ernest  B. 

President  Louisiana  convention,  1898,  318. 


LANSING,  Mich. 

Convention  at,  1907,  263. 
LAPPENBERG,  J.  M. 

On  "Witenagemote,"    15. 
LATIN  AMERICA.     See  South  America. 
LATTER-DAY  SAINTS.    See  Mormons. 
LAVELEYE,  Emile  de. 

On  later  folkmoots,  12,  13. 

On  parliamentary  government,  8. 
LAVENHAM,  Eng. 

Association  at,  57. 


INDEX 


421 


LEAVENWORTH,  Kan. 

Convention  at,   279. 
LECKY,  W.  E.  H. 

On  direct  popular  expression,  347,  348. 
LECOMPTON,  Kan. 

Convention  at,  279. 
LEVERMORE. 

On  origin  of  New  Haven  Colony,  93,  97. 
LEWIS,  Hubert. 

On  London  assembly,  13  n. 
LEXINGTON,  Mass. 

Recommends  changes  in  Articles  of  Con- 
federation, 1 68. 

Votes  against  proposed  constitution,  164. 
LINCOLN,  Abraham. 

First  inaugural  address,  quoted,  292. 

Senatorial  canvass,  260. 
LOCKE,   John. 

Fundamental    Constitutions,    in,    112, 
113  n. 

On  legislative  power,  x. 

Training,  in. 
LOMBARDY.      ' 

Code  of,  17. 

Referendum  in,  17,  378,  381. 
LONDON. 

Popular  assembly  at,  13. 
LOUISIANA. 

Conditions  resulting  in  last  constitution 
discussed,  314,  315. 

Constituent  act,  315-318. 

Constitutional  convention  of  1898,  318, 

31?- 

Constitution  of  1812,  269. 

Constitution  of  1879,  27°.  3X3- 

Constitution  of  1898,  313-319. 

Constitution  of    1898  assailed,  318,  319. 

Early  movement  for  statehood,  268. 

Enabling  act,  268,  295. 

First  constitutional  convention,  268. 

Reconstruction  constitution,  270. 

Secession  constitution,  270. 

Second  constitution,  269,  270. 
LOUISIANA  PURCHASE. 

Popular  ratification  in,  268-284. 
LOWELL,  A.  L. 

On  referendum,  346  n,  347  n. 
LYNN,  Eng. 

Guild  ordinances  at,  21. 


M 

MACKINTOSH,  Sir  James. 

Quoted,  vii. 
MADISON,    James. 

Member    second    Virginia    convention, 

218. 

Proposes  submission  of  Federal  Constitu- 
tion, 292,  293. 


MADISON,  Wis. 

Convention  at,  264,  265. 
MAGNA  CHARTA.. 

Mentioned,  ix,  135. 

Of  Kentucky,  132. 

Popular  ratification  of,  19. 

Prototype  of  constitution,  ix. 
MAINE. 

Constitution  of,  199-201. 

Enabling  act,   295. 

Influence  of  Massachusetts   upon,    177, 
199,   200. 

Influence  upon  other  states,  200. 

Movement  for  separation  from  Massa- 
chusetts,  197-199. 

Popular  ratification  in,  196-201. 

Referendum  in,  366. 
MAINE,  Sir  Henry. 

On  guilds,  20. 
MARCHES,  Italy. 

Plebiscite  in,  379. 
MARRIAGE. 

In  New  England,  ix. 
MARSHALL,  John. 

Founds  American  constitutional  law,  xi. 

Member    second    Virginia    convention, 

218. 
MARYLAND. 

Constitution  of  1851,  233—235. 

Constitution  of  1864,  235. 

Early  attempt  at  submission  in,  228. 

Extension  of  electoral  franchise  in,  228. 

First  constitution,  137,  155. 

Movement  for  second  constitution,  229- 

235- 
Obstacles  to  constitutional  amendment, 

229,  234. 

Present  constitution,  235. 
MASON,  George. 

Part  in  first  Virginia  convention,  144,  145. 
MASSACHUSETTS. 

Articles  of  Confederation  in,  167,  168. 

Constitution  of  1780,  169-179. 

Early  demand  for  popular  ratification, 

163- 

Rejected  constitution  of  1778,  164-167. 
Submission  of  amendments  in,  201,  202. 
Second  constitutional    convention,    201, 

202. 

MASSACHUSETTS  BAY  COLONY. 
Authorized  objects,   46. 
Church  covenant,  74. 
Delegate  system  in,  74,  75. 
First  charter,  73. 
Frame  of  government,  74. 
Initiative  and  referendum  in,  75,  76. 
Modelled  on  "Merchant  Adventurers," 

46. 
Popular  legislation  in  towns  of,  77. 


422 


INDEX 


MASSON,  Gustave. 

On  "Agreement  of  the  People,"  65. 
MATHER,  Richard. 

On  source  of  political  power,  40. 
MAYFLOWER  COMPACT. 

Adoption,  69. 

Characterizations,  70,  90. 

Text,  70. 
MAYFLOWER  COMPANY. 

Origin  and  organization,  47. 
McEuEN,  Malcom. 

Chairman  "  Mechanicks  in  Union,"  161. 
MCKNIGHT,  D.  A. 

On  electoral  system,  230  n. 
"MECHANICS  IN  UNION." 

Urge  popular  ratification  in  New  York, 

157-161. 
MECKLENBURG  COUNTY,  N.C. 

Alleged  declaration  of  independence,  118. 

Instructions  to  delegates,  153. 

Resolves,  118. 
MEDILL,  Joseph. 

Favors  minority  representation,  260  n. 
MELVILLE,  Andrew. 

At  Geneva,  35. 

In  Scotland,  39. 

Organizes     Presbyterian     Church,    etc., 

39  et  seq. 

"MERCHANT  ADVENTURERS,"  45,  46. 
MEXICAN  CESSION. 

Popular  ratification  in  states  of,  285-291. 
MEXICO. 

Constitution  of  1824,  387,  388. 

Constitutional  amendment  in,  388  n. 
"MIAMI  PURCHASE." 

Compact  in,  252. 
MICHIGAN. 

First  constitutional  convention,  261. 

Initiative  and  referendum  in,  263. 

Later  constitutions,  262,  263. 

Popular  ratification  in,  261-263. 
MILAN. 

Referendum  in,  381. 

MlLLEDGEVELLE,   Ga. 

Convention  at,  225. 
MILLS,  Lawrence  P. 

Seeks  to  enjoin  election  of  delegates,  307, 

308. 
MINEOLA,  Kan. 

Convention  at,  279. 
MINERS'  ASSOCIATIONS. 

In  California,  286,  287. 

In  Iowa,  273. 
MINNESOTA. 

Advanced  amendment  system,  283. 

Retains  original  constitution  of  1857, 283. 
MISSI  DOMINICI,  17. 
MISSISSIPPI. 

Attack  on  constitution  of  1890,  305,  306. 


Compact  in,  134. 

Constitution  and  convention  of  1890, 302- 

3°5- 

Constitution  of  1868,  213,  302. 

Early  settlement,  134. 

Enabling  act,  210. 

First  state  constitution,  210-212. 

Movement  for  unsubmitted  constitution, 
301-305. 

Reconstruction  constitution,  213. 

Second  state  constitution,  212. 

State  organized,  210. 

Territory  formed,  210. 
MISSOURI. 

Constitutional  convention  legislates,  271. 

Constitution  of  1865,  271. 

Constitution  of  1875,  271. 

Convention  of  1861,  271. 

Enabling  act,  270. 

First  state  constitution,  270. 

Initiative  and  referendum  in,  365. 

Rejected  constitution,  270,  271. 

Representation  theory  in,  271. 
MOFFETT,  S.  E. 

On  special  -us.  general  elections,  345. 
MONROE,  James. 

Member    second    Virginia    convention, 

219. 
MONTANA. 

Constitutional    amendment    system    in, 
283. 

Initiative  and  referendum  in,  363,  364. 

Instruction  of  voters  in,  364. 
MONTEREY,  Cal. 

Convention  at,  288. 
MONTGOMERY,  Ala. 

Convention  at,  215. 
MONTEPLIER,  Vt. 

Convention  at,  202. 
MORLEY,  John. 

On  Calvin,  33. 
MORMONS. 

Apply  doctrine  of  "common  consent," 

289. 
Mo  WRY,  A.  M. 

On  refugees  at  Geneva,  34  n. 

N 
NAPLES. 

Plebiscite  in,  379. 
NAPOLEON. 

Imitated  by  Bolivar,  387. 

Plebiscites  under,  371-376. 
NASHBOROUGH. 

Articles  adopted  at,  122-124. 

Founded,   121. 
NATAL. 

Proposed  referendum  in,  394  «. 
NATIONAL  COVENANT,  49-53. 


INDEX 


423 


NEAL,  Daniel. 

On  subscription  of  "  Solemn  League  and 

Covenant,"  61,  63. 
NEBRASKA. 

Absence  of  laws  in  early,  280,  281. 

Claim  associations  in,  281. 

Compact  in,  281. 

Constitution  of  1866,  282. 

Constitution  of  1875,  282. 

Convention  proposal  submitted,  281,  282. 

Party    ratification    of    amendments    in, 
344  n. 

Popular  vote  on  amendments  in,  344. 

Rejected  constitution  of  1871,  282. 
NELSON,  Mr.  Justice. 

On  changing  constitution,  147. 
NEVADA. 

Constitution  of,  291. 

Initiative  and  referendum    in,  362,  363. 
NEW  HAMPSHIRE. 

Articles  of  Confederation  in,  180,  181. 

Constitution  of  1793,  189,  190. 

Federal  Constitution  in,  188,  189. 

First  contitutional  convention,  184,  185. 

First  popular  constitution  of,  187. 

First  state  to  adopt  constitution,  138,  139. 

First  submission  in,  185. 

Movement  for  permanent   constitution, 
182-184. 

Popular  legislation  in  colonial,  99. 

Reasons  for  non-submission  in,  140. 

Second    constitutional    convention,    185, 
186. 

State  constitution  proclaimed  by  legis- 
lature,  139. 
NEW  HAVEN,  Conn. 

Origin  of  colony,  47,  93. 

Popular  legislation  in,  93-97. 
NEW  JERSEY. 

Constitution  of  1844,  247,  248. 

First  constitution,  137,  155. 

Movement  for  second  constitution,  247. 

Popular  ratification  established  in,  247. 
NEW  ORLEANS,  La. 

Constitutional  convention  at,  268,  318. 
NEW  PLYMOUTH. 

A  transplanted  church,  68. 

Code  of  laws,  71. 

Compact,  71. 

Introduction  of  delegate  system,  72. 

Laws  made  by  "common  consent,"  70, 

71,   72. 
NEWPORT,  R.I. 

Legislation  in,  80. 
NEW  SOUTH  WALES. 

Part  in  Australian  federation  movement, 

392,  393- 
NEW  YORK. 

Constitution  of  1831,  244-246. 


Convention  of  1821,  243-246. 
First  constitution  of,  156-162. 
Influence  of  Massachusetts  convention, 

240,  241. 

Later  conventions,  246,  247. 
Movement  for  new  constitution,  240-243. 
Peculiarities  of  first  constitution,  239,  240. 
Popular  ratification  established  in,  246. 
Second  constitution  of,  162. 
NEW  ZEALAND. 

Part  in  Australian  federation  movement, 

39°,  393- 
NICARAGUA. 

Approach  to  popular  ratification  in,  386. 
NICE. 

Plebiscite  in,  380. 
NORTH  CAROLINA. 

Constitution  of  1835,  226. 

Constitution  of  1875,  226. 

Consultation  of  people,  152. 

First  constitution  of,  152-154. 

Instructions  to  delegates,  153,  154. 

Regulators'  movement  in,   114-117. 

Scotch- Irish  in,  152,  153. 

Suffrage  clause,  226. 
NORTH  DAKOTA. 

Constitutional  amendment  system  of ,  283. 

Initiative  and  referendum  in,  365. 
NORTH  LENNE,  Eng. 

Guild  ordinance  in,  21. 
NORTHWEST  TERRITORY. 

Early  popular  law-making  in,  250-252. 
NORTON,  Mass. 

Opposes  constitution,  164. 
NORWAY. 

Referendum  in,  383,  384. 
NORWICH,  Eng. 

"Cradle  of  Congregationalism,"  42. 

Freemasonry  in,  44  n. 

Number  and  quantity  of  guilds  in,  43,  44. 

Stronghold  of  Puritanism,  56. 


OCEANA,  Harrington's. 

Quoted  by  Professor  Dwight,  178. 

Studied  by  John  Adams,  178. 

Studied  by  William  Penn,  108. 
OHIO. 

Adopts  first  constitution  in  Northwest, 
252-254. 

Enabling  act,  252,  253. 

First  constitutional  convention,  253. 

Second   constitutional    convention,    254, 

255- 
OKLAHOMA. 

Constitution  adopted,  283. 

Embodies  initiative  and  referendum  in 

constitution,  283,  284,  365. 


424 


INDEX 


OMAHA,  Neb. 

Claim  club  of,  281. 
ORANGE  COUNTY,  N.C. 

Instructions  to  delegates,  154. 

Regulators'  movement  in,  114-117. 
OREGON. 

Constitution  of,  291. 

Corrupt  practices  act  in,  362. 

Direct  primary  in,  362. 

Instruction  of  voters  in,  361,  362,  366. 

Popular  ratification  in,    290,    291,   345, 
361,  362. 

Proportional  representation  in,  362. 

Provisional  government  for,  290. 

Referendum  in,  291,  361,  362. 
OSGOOD,  H.  L. 

On  Leyden  church,  47,  71. 

On    republicanism    in    Puritan    army, 

65  n. 
OTIS,  James. 

On  statute  nullifying  power,  x. 


PACA,  William. 

Proposes  submission  of  amendments  to 

Federal  Constitution,  228. 
PAINE,  Robert  Treat. 

Part    in    framing    Massachusetts    con- 
stitution, 171  n. 
PAINE,  Thomas. 

Member     committee     French     national 

convention,  368. 
PALGRAVE,  Francis. 

On  "Witenagemote,"  16  n. 
PARKES,  Sir  Henry. 

Part  in  Australian  federation,  390. 
PARLIAMENTARY  GOVERNMENT.     See  Dele- 
gate system. 
PARSONS,  Theophilus. 

Part    in    framing    Massachusetts    con- 
stitution,  171  n. 
PARTIES. 

Ratification  by,  322,  323,  344  n. 
PATTISON,  Mark. 

On  "ordinnances"  of  Geneva,  32. 
"PENDLETON  DISTRICT." 

Association  in,  130. 
PENN,  William. 

Constitution  for  Pennsylvania,  108. 

Constitution  for  West  Jersey,  107,  108. 

Consults  Sidney,  108. 

Draws  from  Oceana,  108. 

Education,  107. 

Frames  colonial  constitutions,  107,  108. 

On  effect  of  popular  participation,  348  n. 

On  seat  of  legislative  power,  2,  3  n. 

Studies  Harrington,  108. 

Youth  and  antecedents,  107. 


PENNSYLVANIA. 

Constitution  of  1790,  237. 

Constitution  of  1838,  238,  239. 

Constitution  of  1873,  239. 

First  constitution  of,  148-150. 

Initiative  in,  238. 

Plebiscitum  in,  150-152. 

Referendum  in,  149,  238. 
PERU. 

Approach  to  popular  ratification  in,  386. 
PHELAN,  James. 

On  Nashborough  settlement,  122. 

On  Scotch-Irish,  125  n. 
PHILADELPHIA. 

Federal  convention  at,  292,  293. 

State  constitutional  convention  at,  237. 
PIEDMONT. 

Referendum  in,  378-381. 
PLANTATION  COVENANT. 

Of  New  Haven,  93,  94. 
PLEBISCITUM.     See  Referendum. 

Proposed  in  Pennsylvania,  150-152. 
PLUMER,  William. 

On  New  Hampshire  constitutions,   139, 

190. 
POPULAR     PARTICIPATION.     See     Popular 

ratification. 
POPULAR  RATIFICATION. 

Early  demand  for,  in  North  Carolina,  153, 
154- 

Early    demand    for,   in   Massachusetts, 
163. 

In  Australia,  390-394. 

Indigenous  in  the  Southern  states,  204. 

In  federal  government,   292-300. 

In  Honduras,  386. 

In  Iowa,  273-276. 

In  Natal,  394  w. 

In  Nicaragua,  386. 

In  Ohio,  254. 

In  old  Northwest  Territory,  250-267. 

In  Peru,  386. 

In  San  Salvador,  386. 

In  South  Africa,  394  «. 

In  South  America,  386-388. 

In  Transvaal,  394  n. 

In  Vermont,  202,  203. 

Judicial  assertion  of  necessity  for,  146, 
147- 

Meaning  of  "majority  of  those  voting 
thereon,"  328-330. 

Meaning  of  "majority  of  votes  cast," 
327,  328. 

Of  Magna  Charta,  19. 

Periods  in  development  of,  338-340. 

Proposed  by  Jefferson  in  Virginia,  145, 
146. 

Results  of,  340-348. 

Resume  of  history,  338-340. 


INDEX 


425 


POPULAR  RATIFICATION  —  Continued. 

Urged     by    "Mechanicks    in     Union," 
157-161. 

Vote  necessary  to  ratify,  326,  330. 
PORTSMOUTH,  R.I. 

Town  compact  in,  79,  80. 

Town  meeting,  80. 
PRESBYTERI  ANISM. 

Dispersion  of,  108. 

First  American  Presbytery,  108. 

Opposition  to,  105. 

Organization  in  Scotland,  39  et  seq. 
PROVIDENCE,  R.I. 

Town  compact  in,  79. 


QUAKERS. 

Discrimination  against,  105  n. 

Favor  Great  Britain,  148. 

Found  Pennsylvania,  107,  108. 
QUEENSLAND. 

Part    in    Australian    federation    move- 
ment, 392,  393. 
QUICK,  John. 

Supports  Australian  federation,  391. 


RALEIGH,  N.C. 

Convention  at,  226. 
RAMSAY,  David. 

On  South  Carolina  associations,  113. 
RAMSEY,  James  G.  M. 

On  Frankland  constitution,  126,  128  n. 

On  Tennessee  "Associations,"  128,  129. 

On  Watauga  "Articles,"  121. 
RANDOLPH,  Edmund. 

On   Jefferson's   views  of  Virginia   con- 
vention, 144. 
RANDOLPH,  John. 

In     federal     constitutional     convention, 
293- 

Member    second    Virginia    convention, 

219-222. 
REFERENDUM. 

Advisory  in  Delaware,  312,  364. 

Advisory  in  Illinois,  261,  359. 
'  As  applied  to  all  legislation,  358,  366. 

Benefits  of,  88,  365,  366. 

Constitutionality,  350,  356. 

Demanded  in  Massachusetts,  163. 

In  Australia,  390-394. 

In  Bremen,  384. 

In  Delaware,  364. 

In  Denmark,  384. 

In  France,  369. 

In  Germany,  384. 

In  Iceland,  384. 

In  Illinois,  261,  359. 


In  Italy,  378-381. 

In  Lombardy,  17,  378,  381. 

In  Maine,  364. 

In  Massachusetts  Bay,  76. 

In  Michigan,  263. 

In  Milan,  381. 

In  Missouri,  363. 

In  Montana,  363,  364. 

In  Natal,  394  n. 

In  Nevada,  362,  363. 

In  North  Dakota,  365. 

In  Norway,  383,  384. 

In  Ohio,  365, 

In  Oklahoma,  364,  365. 

In  Oregon,  361,  362. 

In  Pennsylvania,  149,  351-353. 

In  Piedmont,  378-381. 

In  Rhode  Island,  81,  86,  353,  354. 

In  St.  Barthelemy,  383. 

In  South  Africa,  394  n. 

In  South  Dakota,  359,  360. 

In  Switzerland,  26,  38,  88. 

In  Tennessee,  127. 

In  Texas,  354,  355. 

In  Transvaal,  394  n. 

In  Utah,  360,  361. 

In  Wisconsin,  265,  266,  355,  356. 

Objections  to,  88,  346,  347. 

On  school  questions,  351-357. 

Opposed  by  Deploige,  346,  347. 

Origin,  349,  357. 

Results  of,  340-348,  365,  366. 

Statutory,  349~357- 
REGULATORS. 

Adopt  articles,  115,  116. 

Battle  with  provincial  forces,  117. 

In  the  Carolinas,  114-117. 

Oath,   116-117. 
REID,  G.  H. 

Supports  Australian  federation,  391. 
REPRESENTATION  THEORY,  147,  271. 
REPRESENTATIVE    SYSTEM.    See    Delegate 

System. 
RHODE  ISLAND. 

Characterizations  of,  87. 

Charters  of,  80,  81,  85. 

Code  of  laws,  81. 

Delegate  system  in,  83-85. 

Federal  Constitution  in,  191-194. 

First  state  constitution,  194. 

Popular  legislation  displaced,  85,  86. 

Popular  legislation  perfected,  80—82. 

Proposed  constitutions,  194. 

Retains  colonial  charter,   191. 

Town  compacts,  79,  80. 
RICHMOND,  Va. 

Conventions  at,  223,  321. 
RIVERS,  James  W. 

On  Alexander  Skene,  112  n. 


426 


INDEX 


ROBERTS,  B.  H. 

On  Mormon  democracy,  289. 
ROBERTSON,  James. 

Early  life,  119,  120. 

Founder  of  Nashborough,  121. 

Leader  in  Watauga  settlement,  119,  120. 

Member  first  Tennessee  convention,  208. 

Reputed  author  of  compact,  122. 

Schooled  in  Presbyterianism,   124. 
ROBINSON,  John. 

At  Norwich,  42. 

At  Scrooby  and  Leyden,  43,  68. 
ROCHE,  J.  J. 

On  referendum  in  Lombardy,  381. 
ROME. 

Comitia  at,  4,  5. 

Plebiscite  in,  380,  381. 
ROOSEVELT,  Theodore. 

On  Calvinism,  107  n. 

On  Scotch-Irish  colonization,  106,  120. 

On  Transylvania  colony,  132. 

On  Watauga  settlers  and  compact,  120- 

125. 
ROOT,  Erastus. 

Member  New  York  constitutional  con- 
vention of  1821,  244. 
ROSE,  U.  M. 

On  delegate  system,  7. 
ROUSSEAU,  J.  J. 

Explanation  of  decline  of  folkmoot,  5,  6. 

Influence  of  "Contrat  Social,"  37. 

On  importance  of  popular  participation, 

343- 
On  necessity  of  popular  ratification  of 

law,  9. 

On  representative  system,  7,  9. 
On  Roman  tribunes,  7  n. 
RUSSELL,  Lord  John, 

On  Italian  plebiscites,  380. 
RUSSIA. 

Survival  of  folkmoot  in,  14. 
Zemstvoes,  14. 
RYAN,   Edward  G. 

Member   first   Wisconsin   constitutional 
convention,  264. 


ST.  BARTHELEMY. 

Referendum  in,  383. 
ST.  JOSEPH,  Fla. 

Convention  at,  226. 
ST.  Louis,  Mo. 

Convention  at,  270. 
SALEM,  Oregon. 

Convention  at,  290. 
SALT  LAKE  CITY,  Utah. 

Convention  at,  289. 
SAN  SALVADOR. 

Approach  to  popular  ratification  in,  386. 


SAVOY. 

Plebiscite  in,  380. 
SAXONY. 

Survival  of  folkmoot  in,  12. 
SCHOOLS. 

Origin  of  public,  28. 

Regulated  at  town  meeting,  too,  101. 
SCOTCH-IRISH. 

At  Mecklenburg,  N.C.,  117,  118. 

Characteristics,  107. 

Colonization,  106,  112,  113,  125  n. 

Henderson  on,  106  n. 

In  Mississippi,  133. 

In  Pennsylvania,  108,  in. 

In  Tennessee,  119  et  seq. 

In  the  Carolinas,  112,  113. 

In  Ulster,  105,  106. 

In  Virginia,  130. 

Migration  causes,  105,  106. 

Organize  presbytery,  108. 

Origin,  62,  63,  105. 

Roosevelt  on,  106,  120. 

Turner  on,  107. 
SCOTLAND. 

Covenants  in,  49-53,  60-64. 
SCOTT,  Walter. 

Co-laborer  in  Campbell  movement,  216. 
SCOUIL. 

High  commissioner  in  South  Carolina, 

114. 
SELIGMAN,  E.  R.  A. 

On  guilds,  20  n. 
SEPARATION  OF  POWERS. 

Elaborated  by  Montesquieu,  178. 

Embodied  in  first  Virginia  constitution, 
144. 

Formulated  by  Aristotle,  178. 

Fully  expressed    in  Massachusetts  con- 
stitution, 178. 
SERVETUS,  Miguel. 

Monument  to,  33. 
SEVIER,  John. 

Mentioned,  107  n,  129  n. 

President   of   "Frankland"  convention, 

126  n. 
SHAMBAUGH,  B.  F. 

On  claim  associations,  273  n. 
SHIMPLING,  Eng. 

Association  at,  57. 
SHINN,  C.  H. 

On  mining  laws,  286. 
SICILY. 

Plebiscite  in,  379. 
SIDNEY,  Algernon. 

Consulted  by  William  Penn,  108. 
SIMMONS,  Senator. 

On  proposed  federal  referendum,  299. 
SKENE,  Alexander. 

Forms  association,  112. 


INDEX 


427 


SLAVERY. 

Abolition  of,  in  New  Hampshire,  186  n. 

Federal  restriction  of,  proposed  in  Rhode 
Island,  193. 

In  Illinois,  259. 

In  Indiana,  255. 

In  Iowa,  277. 

In  Kansas,  277-280. 

In  Maryland,  234. 

Proposed  plebiscitum  on,  299,  300. 
SOCIAL  CONTRACT  THEORY. 

Applied,  136. 

As  developed  by  Locke,  x. 

In  Kansas  constitution,  279. 
SOCIALISTS. 

Favor  referendum,  377. 
SOLEMN  LEAGUE  AND  COVENANT.  See  Cove- 
nant. 
SOUTH  AFRICA. 

Referendum  in,  394  n. 
SOUTH  AMERICA. 

Approach  to  popular  ratification  in,  386- 
388. 

Undemocratic  ideals  of,  388. 
SOUTH  CAROLINA. 

Constitutional  convention  of  1895,  309, 
310. 

Early   disregard   of   distinction   between 
constitution  and  statute  in,  141,  142. 

Movement  for  unsubmitted  constitution, 
307-310. 

Popular  ratification  departed  from,  307- 
310. 

Quasi-submission  in,  141. 

Regulators'  movement  in,  113,  114. 

Scotch-Irish  in,   112,  113. 

Second  colony  to  adopt  constitution,  141. 
SOUTH  DAKOTA. 

Constitutional  amendment  system  of,  283. 

Initiative  and  referendum  in,  359,  360. 
SPAIN. 

Constitution  of  1812,  388. 

Survival  of  folkmoot  in,  n,  12. 
SPRINGFIELD,  111. 

Conventions  at,  259,  260. 
"SQUATTER  SOVEREIGNTY." 

Embodied  in  Kansas-Nebraska  bill,  298. 
STEFFENS,  Lincoln. 

On  Rhode  Island,  87  n. 
STORY,  Joseph. 

On  Rhode  Island  charter,  191  n. 
STRATFORD,  Eng. 

Guild  ordinances  at,  21. 
STUBBS,  William. 

On  permanence  of  local  customs,  19. 

On  powers  of  witan,  16. 

On  "tungemote,"  13  n. 
SYBEL,  Heinrich  von. 

On  French  constitution  of  1795,  370,  371. 


SYDNEY,  Australia. 

Conventions  at,  389,  392. 
SYMONDS,  John  A. 

On  torch-race  of  nations,  394. 


TASMANIA. 

Part  in  Australian  federation  movement, 

392- 
TAYLOR,  Hannis. 

On  delegate  system,  7  ». 
TENNESSEE.      See      Frankland ;    Nashbor- 
ough,    Watauga. 

Adherence  to  popular  ratification,  209, 
210. 

Associations  in,  129,  130. 

First  state  constitution,  208. 

Influence  on  Illinois,  258. 

Jefferson  praises  first  constitution,  208. 

Second  state  constitution,  209. 
TERRITORIES.     See  Enabling  Acts. 
TEUTONS.     See  Folkmoot. 
TEXAS. 

Annexation,  285. 

Constitution  for  republic  of,  285. 

First  state  constitution,  285,  286. 

Later  constitutions,  286. 

Popular  ratification  precedes  statehood, 
285. 

Referendum  in,  286,  354,  355. 

Secession  constitution,  286. 
THIERS,  L.  A. 

On  French  plebiscites,  372-375. 
THORPE,  F.  N. 

On  colonial  charters,  191  n. 

On  first  state  constitution,  138  n. 

On  Virginia  convention,  144. 
TOCQUEVILLE,  DE,  A.  C.  H.  C. 

On  democracy  in  Maryland,  228  n. 

On  New  England  township,  102  n. 
TOMPKINS,  Daniel  D. 

Member  New  York  convention,  1821, 244. 
TOPEKA,  Kan. 

Convention  at,  277. 
TOWN  MEETING. 

Boston,  102. 

Functions,  100-102. 

Importance,  104. 

Origin,  100,  in. 

Outside  of  New  England,  102-104. 

Portsmouth,  N.H.,  80. 

Salem,  Mass.,  100. 

Tocqueville  on,  102  n. 
TRANSVAAL. 

Proposed  referendum  in,  394  n. 
TRANSYLVANIA  COLONY. 

Compact  for,  132,  133. 

Convention  at  Boonesborough,  132. 


428 


INDEX 


TRANSYLVANIA  COLONY  —  Contintted. 

Discontinued,  133. 

Founded,  131. 
TRENTON,  NJ. 

Convention  at,  247. 
TUCKER,  Mr.  Justice. 

States  "representation"  theory,  147. 

TUNGEMOTE,  13. 

TURNER,  F.  J. 

On  Scotch-Irish,  107,  125. 

On  Transylvania  colony,  131. 
TUSCANY. 

Plebiscite  in,  379. 
TWICHELL,  Rev.  Joseph. 

Hartford  address,  88,  90,  91. 

On  "Fundamental  Orders,"  90,  91. 

U 

ULSTER. 

Scotch  colonization  of,  62,  63,  105. 
UMBRIA. 

Plebiscite  in,  379. 
UTAH. 

Preparation  for  popular  ratification,  289. 

Present  constitution,  290. 

Proposed  constitutions,  289,  290. 


V 
VACHEROT,  M. 

On  parliamentary  government,  8. 
VAN  BUREN,  Martin. 

Member  second  New  York  convention, 

1821,  244. 
VANE,  Sir  Henry,  the  Younger. 

Assists  in  obtaining  second  Rhode  Island 
charter,  85. 

New  England  experiences,  67. 

Part  in  framing  "Solemn  League  and 
Covenant,"  60. 

Proposes  constitutional  convention,  66. 
VENEZUELA. 

Constitutional  amendment  in,  388  n. 
VERMONT. 

Amendment  to  constitution,  202,  203. 

Council  of  censors,  202. 

First  constitution,  202. 

Popular  ratification  in,  202. 
VICTORIA. 

Part  in  Australian  federation  movement, 

392. 
VIRGINIA.     See  "Pendleton  District." 

Adopts  "first  complete  constitution,"  142. 

Attack  on  constitution  of  1902,  323,  325. 

Character  of  first  convention,  143,  144. 

Constitution  of  1830,  219,  223. 

Constitution  of  1850,  222,  223. 

Constitution  of  1864,  223. 

Constitution  of  1902,  223,  320-325. 


Jefferson's  plan  for  popular  ratification 

in,  145-148. 
Movement  for  disfranchising  constitution, 

320-325. 
Movement  for  second  constitution,  216- 

219. 
Party  primaries  discuss  constitution,  322, 

323- 

Reconstruction  constitution,  223,  320. 
Second  constitutional   convention,   218- 

222. 

VlZCAYA. 

Folkmoot  andfueros  of,  n,  12  n. 

W 

WALNUT  HILLS,  Miss. 

Mass  meeting  and  compact,  134. 
WASHINGTON. 

First  constitution,  283. 
WASHINGTON,  Miss. 

Convention  at,  210. 
WATAUGA. 

Compact,  1 20,  121. 

Settlement,  119. 
WESTERN  AUSTRALIA. 

Part  in  Australian  federation  movement, 

392,  393- 
WEST  JERSEY. 

Penn's  constitution  for,  107,  108. 
WESTON,  Mass. 

Accepts  Articles  of  Confederation,  167  n, 

168  n. 

Accepts  constitution,  175  n. 
WESTPHALIA. 

Survival  of  folkmoot  in,  12. 
WEST  VIRGINIA. 

Colonized  by  Scotch-Irish,  216. 

Constitution  of,  223. 

Scene  of  new  religious  movement,  216, 

217. 
WHIGS. 

Oppose   second   Maryland   constitution, 

232. 

WIEDERTAUFER.     See  Anabaptists. 
WILLIAMS,  Roger. 

Assists  in  obtaining  second  Rhode  Island 

charter,  85. 

Rhode  Island  experiences  utilized,  67. 
WINSLOW,  Edward. 

Commissioner    to    New    England    Con- 
federation, 77. 
WISCONSIN. 

Constitution  of,  264,  265. 

Direct  primary  in,  266. 

Early  efforts  for  constitution,  263-266. 

First     constitutional     convention,     263, 

264. 
Popular  ratification  in,  263-267. 


INDEX 


429 


WISCONSIN  —  Continued. 

Proposed  constitution,  264,  265. 
Referendum  in,  265,  266. 

WlTENAG EMOTE,  3,  15,  1 6. 

WORDSWORTH,  William. 

On  Guernica  Oak,  n  n. 
WYANDOTTE,  Kan. 

Convention  at,  280. 
WYOMING. 

Amendment  system  in,  283. 

First  constitution,  283. 


YANCY. 

In  Alabama  secession  convention,  215  n. 
YOUNG,  Arthur. 

On  Scotch-Irish  emigration,   106. 


ZEMSTVOES,  14. 
ZWINGLI, 

Doctrines,  30. 


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